LATTIMORE, Judge.
Appellant was given ten years in the District Court of Wharton County, for the murder of one Anthony Bryant. All the parties were negroes. There was no dispute on the trial of the fact that deceased was killed by a knife wound, inflicted by appellant. No. evidence was introduced by appellant, and the ease is before us on the record as made by the State.
1 Upon the trial the State introduced a written and signed statement made by appellant before the magistrate, on the occasion of the éxamining trial. Appellant objected to its introduction upon the ground that he did not have sufficient mental capacity at the time it was made, to understand the consequences of making said statement: and did not have ability enough to know that it would be used against him, or to know that it was necessary for him to state the favorable as well as unfavorable facts in said statement. As a part of his objection, appellant offered to introduce witnesses to show that from an educational standpoint, and from the standpoint of natural ability, appellant did not understand the consequences or purpose of such a statement at the time he made it. The trial court properly overruled these objections, and refused to hear such testimony. Unless it be admitted, or placed beyond question, that a party making a statement offered in evidence, was at the- time mentally unsound, the trial court will not undertake to stop the orderly progress of the trial in order to investigate and determine what was the mental condition of the party who made such statement. If appellant had such evidence, and so desired, he might have introduced the same as a part of his defense before the jury, thus placing the determination of his mental condition at the time he made said statement where it properly belonged, and thus enabling the jury to pass upon the weight, if any, to be attached to said statement. We do not understand from appellant’s bill of exceptions that this evidence was ever offered by appellant as a part of his case, nor that he was refused the opportunity to introduce the same during the trial. Our understanding is that he only offered the same in connection with his objection to the voluntary statement of the accused, taken on his examining trial, and we hold that such objection was properly overruled.
Appellant has a bill of exceptions to the refusal of his application for a continuance, it appearing in said bill that he desired the testimony of one Ike Pratt. Said application fails to show such diligence as is required by law. No subpoenas are attached to the application, or appear in the record. It is stated that there are two terms of the District Court of Wharton County each year, and that appellant was indicted prior to January 1, 1919. Nothing is shown in said application as to what effort, if any, was made to obtain the presence and testimony of said witness at the April term of said court—1919. Nor is the daté of the subpoena, which is stated in the application to have been issued at the November term of said court, stated anywhere in said application, The witness was not "served with process at the
last mentioned term. He was out of the county, which fact was made known to appellant when the case was called for trial on December 1st. The whereabouts of said witness in an adjoining county was then disclosed, and it was stated that he could be gotten in twenty-four hours No attachment or other process was then asked for said witness, and as far as the record discloses, no further effort was made to obtain his testimony. This was not sufficient diligence. Barrett v. State, 18 Texas Crim. App., 67: Johnson v. State, 63 Texas Crim. Rep., 465: Branch’s Ann. Penal Code, Sections 314-315. Several eye-witnesses to the fatal difficulty testified, and no one of them mentioned Ike Pratt as being anywhere in the vicinity, or present at the trouble. The voluntary statement made by appellant on the occasion of his examining trial, was introduced by the State, and we note that it contains no statement of the presence of Ike Pratt at the scene of the difficulty, but does mention the fact that on the previous Sunday, Ike Pratt was present, when there was some fussing between appellant and deceased. It does not appear likely to us that if said witness had been present, he would have testified as stated in said application. We do not think it sufficient that there be simply a bill of exceptions to the court’s supposed refusal of a continuance. This record contains neither an application for continuance, nor an order of the court refusing the same.
Appellant complains of the refusal of the trial court to give two special instructions, and assigns such refusal as error in his motion for a new trial. An examination of said requested instructions, as they appear in the record, and also of the bill of exceptions reserved to the refusal of the trial court to give same, discloses that it is nowhere stated when such special charges were presented to the court: —whether before the main charge was read, or afterwards; whether before the argument was begun or concluded. In this condition of the record, we are unable to conclude that any error was committed by the trial court in refusing such charges. See Articles 737-737a, of Vernon's C. C. P., Watts v. State. 75 Texas Crim. Rep., 331, 171 S. W. Rep., 202; Burrus v. State, 76 Texas Crim. Rep., 120, 172 S. W. Rep., 981.
Appellant reserved an exception to the court’s charge on self-defense, as follows: “Because said charges fails- to instruct the jury fully and as they should be instructed, with reference to the law on self-defense, the evidence in said cause adduced before the jury having shown that the issue of self-defense is the principal issue in said ease.’’
This is not a sufficient exception. It is too general. It suggests nothing specific, and is directed at no particular part of the charge. Such exception could not be sustained or considered in the absence of some special charge correctly presenting what appellant thinks should be charged on this issue.
The trial court instructed the jury on murder, manslaughter, and self-defense. The facts show that appellant owed deceased a small sum of money, and on the occasion in question, deceased tried to collect same, when the difficulty ensued, in which deceased seems to have been the aggressor; at one stage of the difficulty, deceased pursued appellant with an axe; that is to say, deceased was some ten or fifteen steps from appellant, and had an axe in his hand. Deceased was walking, and appellant trotting down the road. No effort of deceased to use the axe, or to overtake appellant, was shown or claimed. Appellant stated in his own voluntary statement, that after going down the road in this relative position for some distance, he stopped, turned around, and told the deceased to put down the axe and he would pay him; that about this time a negro woman came up and took the axe out of the hand of deceased, who thereupon came up to appellant and was paid the dollar. Appellant states further that dceased walked away about fifteen feet, when he, appellant, threw a brick at deceased, striking him on the back of his head. Deceased fell, but got up again, and began to circle around appellant, and appellant went up to him and cut him with a knife, severing the jugular vein or artery, and killing deceased. Appellant complains in his brief that no charge was given on abandoning the difficulty.
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LATTIMORE, Judge.
Appellant was given ten years in the District Court of Wharton County, for the murder of one Anthony Bryant. All the parties were negroes. There was no dispute on the trial of the fact that deceased was killed by a knife wound, inflicted by appellant. No. evidence was introduced by appellant, and the ease is before us on the record as made by the State.
1 Upon the trial the State introduced a written and signed statement made by appellant before the magistrate, on the occasion of the éxamining trial. Appellant objected to its introduction upon the ground that he did not have sufficient mental capacity at the time it was made, to understand the consequences of making said statement: and did not have ability enough to know that it would be used against him, or to know that it was necessary for him to state the favorable as well as unfavorable facts in said statement. As a part of his objection, appellant offered to introduce witnesses to show that from an educational standpoint, and from the standpoint of natural ability, appellant did not understand the consequences or purpose of such a statement at the time he made it. The trial court properly overruled these objections, and refused to hear such testimony. Unless it be admitted, or placed beyond question, that a party making a statement offered in evidence, was at the- time mentally unsound, the trial court will not undertake to stop the orderly progress of the trial in order to investigate and determine what was the mental condition of the party who made such statement. If appellant had such evidence, and so desired, he might have introduced the same as a part of his defense before the jury, thus placing the determination of his mental condition at the time he made said statement where it properly belonged, and thus enabling the jury to pass upon the weight, if any, to be attached to said statement. We do not understand from appellant’s bill of exceptions that this evidence was ever offered by appellant as a part of his case, nor that he was refused the opportunity to introduce the same during the trial. Our understanding is that he only offered the same in connection with his objection to the voluntary statement of the accused, taken on his examining trial, and we hold that such objection was properly overruled.
Appellant has a bill of exceptions to the refusal of his application for a continuance, it appearing in said bill that he desired the testimony of one Ike Pratt. Said application fails to show such diligence as is required by law. No subpoenas are attached to the application, or appear in the record. It is stated that there are two terms of the District Court of Wharton County each year, and that appellant was indicted prior to January 1, 1919. Nothing is shown in said application as to what effort, if any, was made to obtain the presence and testimony of said witness at the April term of said court—1919. Nor is the daté of the subpoena, which is stated in the application to have been issued at the November term of said court, stated anywhere in said application, The witness was not "served with process at the
last mentioned term. He was out of the county, which fact was made known to appellant when the case was called for trial on December 1st. The whereabouts of said witness in an adjoining county was then disclosed, and it was stated that he could be gotten in twenty-four hours No attachment or other process was then asked for said witness, and as far as the record discloses, no further effort was made to obtain his testimony. This was not sufficient diligence. Barrett v. State, 18 Texas Crim. App., 67: Johnson v. State, 63 Texas Crim. Rep., 465: Branch’s Ann. Penal Code, Sections 314-315. Several eye-witnesses to the fatal difficulty testified, and no one of them mentioned Ike Pratt as being anywhere in the vicinity, or present at the trouble. The voluntary statement made by appellant on the occasion of his examining trial, was introduced by the State, and we note that it contains no statement of the presence of Ike Pratt at the scene of the difficulty, but does mention the fact that on the previous Sunday, Ike Pratt was present, when there was some fussing between appellant and deceased. It does not appear likely to us that if said witness had been present, he would have testified as stated in said application. We do not think it sufficient that there be simply a bill of exceptions to the court’s supposed refusal of a continuance. This record contains neither an application for continuance, nor an order of the court refusing the same.
Appellant complains of the refusal of the trial court to give two special instructions, and assigns such refusal as error in his motion for a new trial. An examination of said requested instructions, as they appear in the record, and also of the bill of exceptions reserved to the refusal of the trial court to give same, discloses that it is nowhere stated when such special charges were presented to the court: —whether before the main charge was read, or afterwards; whether before the argument was begun or concluded. In this condition of the record, we are unable to conclude that any error was committed by the trial court in refusing such charges. See Articles 737-737a, of Vernon's C. C. P., Watts v. State. 75 Texas Crim. Rep., 331, 171 S. W. Rep., 202; Burrus v. State, 76 Texas Crim. Rep., 120, 172 S. W. Rep., 981.
Appellant reserved an exception to the court’s charge on self-defense, as follows: “Because said charges fails- to instruct the jury fully and as they should be instructed, with reference to the law on self-defense, the evidence in said cause adduced before the jury having shown that the issue of self-defense is the principal issue in said ease.’’
This is not a sufficient exception. It is too general. It suggests nothing specific, and is directed at no particular part of the charge. Such exception could not be sustained or considered in the absence of some special charge correctly presenting what appellant thinks should be charged on this issue.
The trial court instructed the jury on murder, manslaughter, and self-defense. The facts show that appellant owed deceased a small sum of money, and on the occasion in question, deceased tried to collect same, when the difficulty ensued, in which deceased seems to have been the aggressor; at one stage of the difficulty, deceased pursued appellant with an axe; that is to say, deceased was some ten or fifteen steps from appellant, and had an axe in his hand. Deceased was walking, and appellant trotting down the road. No effort of deceased to use the axe, or to overtake appellant, was shown or claimed. Appellant stated in his own voluntary statement, that after going down the road in this relative position for some distance, he stopped, turned around, and told the deceased to put down the axe and he would pay him; that about this time a negro woman came up and took the axe out of the hand of deceased, who thereupon came up to appellant and was paid the dollar. Appellant states further that dceased walked away about fifteen feet, when he, appellant, threw a brick at deceased, striking him on the back of his head. Deceased fell, but got up again, and began to circle around appellant, and appellant went up to him and cut him with a knife, severing the jugular vein or artery, and killing deceased. Appellant complains in his brief that no charge was given on abandoning the difficulty. He reserved a general exception to the main charge, for its failure to submit abandoning the difficulty, though no special instruction was legally asked presenting any phase of the law of said issue. Just what specific complaint of the charge was intended, is not clear. The court below seems to have charged the jury on manslaughter in a manner satisfactory to appellant, as there was no exception to this part of the charge. In his instruction to the jury on self-defense, the trial court told them that if from the standpoint of the appellant, it appeared to him that deceased had made a demonstration' which induced appellant to believe that deceased was about to attack him, etc., he would have the right to cut deceased, and to continue to cut him as long as there seemed any danger or apparent danger; and that if the danger was apparent only, appellant would have the same right as if it was real; and that appellant did not have to retreat in order to avoid the necessity of killing deceased. No exception was reserved to the charge on self-defense. We are unable, as probably was also the trial court, to know what phase of abandoning the difficulty appellant desired to direct his exception at and to have given in the charge. We think the evidence fully showed that deceased had accomplished his object;—had collected his money;—and was leaving the place where appellant was when the latter attacked and killed him. If appellant was actuated by malice, the offense was murder; if he acted from sudden passion arising from adequate cause, it was manslaughter. The law of both these subdivisions of culpable homicide was fully submitted, and so satisfactorily, as to elicit no exceptions from appellant. The application of the law to the facts was
for the jury, and they seem to have discharged their duty.
We find no error in this record sufficient to justify the reversal of this case, and it is accordingly affirmed.
Affirmed.