DICE, Commissioner.
The offense is murder; the punishment, death.
The State’s evidence shows that on the night in question Leslie Riggins and his wife went to a night club in the City of Midland around midnight, taking with them their five young children, including their baby girl, Cynthia, 9 months of age. Upon arriving at the club the parents went in and left the children asleep in the car, the baby being on the front seat. Later the father returned to the car to check the children and found that Cynthia, the baby, was gone and thereupon called the police.
In the search and investigation which followed, the baby’s dead, naked and bloody body was found by the officers in a pasture approximately 1,990 feet from the night club lying in some cactus and mesquite bushes. At a point 319 feet from the body the officers found a pink towel in which the baby had been wrapped by its mother and also a bloody stick 11½ inches long and ¾. of an inch in diameter. The officers also observed a hole in the sand in which there was some blood and curly hair and nearby, prints in the sand which appeared to have been made by the knees of a human being. The baby’s clothing was found approximately 232 feet from the body and in the general vicinity where the body was found the officers observed heel prints from a pair of shoe heels which contained two round circles.
An autopsy performed upon the body of the deceased by Dr. Marvin David Orra-hood, a pathologist, revealed contusions on the left side of the face and forehead and a shearing fracture of the skull. Dr. Or-rahood testified that the cause of death of the child was internal damage to the brain, secondary to the fracture, and expressed his opinion that the fracture could have been caused by a blow of the hand or by placing a human knee of an adult male against the left side of the head and pressing against it hard several times with the body on the ground. The autopsy examination further revealed damage and injury to the vagina and rectum that extended into the abdominal cavity which Dr. Orrahood testified could have been caused by the bloody piece of wood found near the body of the deceased.
Appellant’s confession made to the officers following his arrest was introduced in evidence in which he admitted taking the baby from the automobile on the night in question; appellant stated that he had been drinking and, among other things, stated “I am not sure what I had in my head, but I think I wanted to have intercourse with the baby”; that after crossing a cotton field and coming upon a ridge “I laid the baby down and after I laid it down I squatted down near the left side of the baby and struck it with my right hand on the head. [68]*68After striking the baby, I then put my right knee on the side of the baby’s head and pushed down on the baby’s head as hard as I could several times. I don’t remember how many times I did this.' I was feeling real drunk and sick. After pushing on the baby’s head with my knee, I picked up a piece of wood and I turned the baby over with its face down and squatted down beside the baby and stuck the stick in the baby, * * * I got up and picked up the baby and headed towards the oil tanks. I believe I threw the baby down in the weeds near the ridge and I don’t remember where I threw the baby’s clothes.” Appellant further stated in the confession that he then went home and went to sleep; got up at S :00 A.M. and went to work at a cafe; that he later heard that the police were looking for “heels like mine” and that when he got off from work he went home and took the heels off his shoes and put them under a water heater in his home.
Appellant’s confession is sufficiently corroborated by the other state’s evidence and circumstances to show that he killed the deceased by the manner and means alleged ⅛. the indictment.
Appellant’s defense was that of insanity.
In support of such defense appellant offered evidence showing that in the year 1945 he was adjudged a feeble-minded person and committed to the Austin State School at Austin and that in the year 1942 his mother was adjudged be a person of unsound mind and committed to the Big Spring State Hospital.
Mrs. Lupez Sanchez, called as a witness by the appellant, testified that the appellant’s mother did not realize anything about the case against her son; that his half sister was not normal and stated that in her opinion the appellant “did not have a good ■mind”.
Dr. Marvin E. Grice, a psychiatrist, called as a witness by the State, testified that he had examined the appellant on three occasions and based upon the examinations it was his opinion that appellant was sane. Dr. Grice further testified that he felt that appellant was mentally retarded-but that he did not observe anything in his acts, speech or conduct which led him to believe that appellant did not know the difference between right and wrong.
Vernon ■ Jones, Superintendent of the Mexia State School for retarded people, testified that appellant was received at that institution in April 1952, furloughed in February 1953 and discharged in June 1953; that appellant was classified as “dull normal” and while at the institution he observed appellant and did not see anything in his speech, acts or conduct which led him to believe that appellant was insane or did not know the difference between right and wrong.
The State called numerous officers who had seen and observed appellant on occasions following his arrest who testified that they had not observed anything in his speech, actions or conduct which led them to' believe he was insane or did not know the difference between right and wrong.
The trial court in his charge fully instructed the jury on the appellant’s defense of insanity and required the jury to determine the question of his sanity both at the time of the commission of the alleged offense and at tire time of the trial. The jury was further instructed under the provisions of Art. 36, Vernon’s Ann.P.C., of their right to take into consideration evidence of temporary insanity produced by the recent use of ardent spirits in mitigation of the penalty.
In returning their verdict of guilty the jury found that appellant was sane at the time the offense was alleged to have been committed and at the time of the trial and we find- the evidence sufficient to sustain their verdict.
The Court charged the jury on both the law of murder with and without malice and applied the law to the facts.
[69]*69Appellant made no objections to the charge in the trial court and for the first time on appeal insists that the charge was fundamentally erroneous because it did not instruct the jury that before they could find him guilty they must find that he had an intent to kill.
In Clough v. State, 161 Tex.Cr.R. 454, 278 S.W.2d 847, a murder case, where no exceptions or objections were preserved to the Court’s charge we held that we were not authorized to consider the contention that a charge of specific intent to kill should have been given.
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DICE, Commissioner.
The offense is murder; the punishment, death.
The State’s evidence shows that on the night in question Leslie Riggins and his wife went to a night club in the City of Midland around midnight, taking with them their five young children, including their baby girl, Cynthia, 9 months of age. Upon arriving at the club the parents went in and left the children asleep in the car, the baby being on the front seat. Later the father returned to the car to check the children and found that Cynthia, the baby, was gone and thereupon called the police.
In the search and investigation which followed, the baby’s dead, naked and bloody body was found by the officers in a pasture approximately 1,990 feet from the night club lying in some cactus and mesquite bushes. At a point 319 feet from the body the officers found a pink towel in which the baby had been wrapped by its mother and also a bloody stick 11½ inches long and ¾. of an inch in diameter. The officers also observed a hole in the sand in which there was some blood and curly hair and nearby, prints in the sand which appeared to have been made by the knees of a human being. The baby’s clothing was found approximately 232 feet from the body and in the general vicinity where the body was found the officers observed heel prints from a pair of shoe heels which contained two round circles.
An autopsy performed upon the body of the deceased by Dr. Marvin David Orra-hood, a pathologist, revealed contusions on the left side of the face and forehead and a shearing fracture of the skull. Dr. Or-rahood testified that the cause of death of the child was internal damage to the brain, secondary to the fracture, and expressed his opinion that the fracture could have been caused by a blow of the hand or by placing a human knee of an adult male against the left side of the head and pressing against it hard several times with the body on the ground. The autopsy examination further revealed damage and injury to the vagina and rectum that extended into the abdominal cavity which Dr. Orrahood testified could have been caused by the bloody piece of wood found near the body of the deceased.
Appellant’s confession made to the officers following his arrest was introduced in evidence in which he admitted taking the baby from the automobile on the night in question; appellant stated that he had been drinking and, among other things, stated “I am not sure what I had in my head, but I think I wanted to have intercourse with the baby”; that after crossing a cotton field and coming upon a ridge “I laid the baby down and after I laid it down I squatted down near the left side of the baby and struck it with my right hand on the head. [68]*68After striking the baby, I then put my right knee on the side of the baby’s head and pushed down on the baby’s head as hard as I could several times. I don’t remember how many times I did this.' I was feeling real drunk and sick. After pushing on the baby’s head with my knee, I picked up a piece of wood and I turned the baby over with its face down and squatted down beside the baby and stuck the stick in the baby, * * * I got up and picked up the baby and headed towards the oil tanks. I believe I threw the baby down in the weeds near the ridge and I don’t remember where I threw the baby’s clothes.” Appellant further stated in the confession that he then went home and went to sleep; got up at S :00 A.M. and went to work at a cafe; that he later heard that the police were looking for “heels like mine” and that when he got off from work he went home and took the heels off his shoes and put them under a water heater in his home.
Appellant’s confession is sufficiently corroborated by the other state’s evidence and circumstances to show that he killed the deceased by the manner and means alleged ⅛. the indictment.
Appellant’s defense was that of insanity.
In support of such defense appellant offered evidence showing that in the year 1945 he was adjudged a feeble-minded person and committed to the Austin State School at Austin and that in the year 1942 his mother was adjudged be a person of unsound mind and committed to the Big Spring State Hospital.
Mrs. Lupez Sanchez, called as a witness by the appellant, testified that the appellant’s mother did not realize anything about the case against her son; that his half sister was not normal and stated that in her opinion the appellant “did not have a good ■mind”.
Dr. Marvin E. Grice, a psychiatrist, called as a witness by the State, testified that he had examined the appellant on three occasions and based upon the examinations it was his opinion that appellant was sane. Dr. Grice further testified that he felt that appellant was mentally retarded-but that he did not observe anything in his acts, speech or conduct which led him to believe that appellant did not know the difference between right and wrong.
Vernon ■ Jones, Superintendent of the Mexia State School for retarded people, testified that appellant was received at that institution in April 1952, furloughed in February 1953 and discharged in June 1953; that appellant was classified as “dull normal” and while at the institution he observed appellant and did not see anything in his speech, acts or conduct which led him to believe that appellant was insane or did not know the difference between right and wrong.
The State called numerous officers who had seen and observed appellant on occasions following his arrest who testified that they had not observed anything in his speech, actions or conduct which led them to' believe he was insane or did not know the difference between right and wrong.
The trial court in his charge fully instructed the jury on the appellant’s defense of insanity and required the jury to determine the question of his sanity both at the time of the commission of the alleged offense and at tire time of the trial. The jury was further instructed under the provisions of Art. 36, Vernon’s Ann.P.C., of their right to take into consideration evidence of temporary insanity produced by the recent use of ardent spirits in mitigation of the penalty.
In returning their verdict of guilty the jury found that appellant was sane at the time the offense was alleged to have been committed and at the time of the trial and we find- the evidence sufficient to sustain their verdict.
The Court charged the jury on both the law of murder with and without malice and applied the law to the facts.
[69]*69Appellant made no objections to the charge in the trial court and for the first time on appeal insists that the charge was fundamentally erroneous because it did not instruct the jury that before they could find him guilty they must find that he had an intent to kill.
In Clough v. State, 161 Tex.Cr.R. 454, 278 S.W.2d 847, a murder case, where no exceptions or objections were preserved to the Court’s charge we held that we were not authorized to consider the contention that a charge of specific intent to kill should have been given.
We observe however, that the Court in defining murder in the charge, instructed the jury that “whoever shall voluntarily kill any person in this state shall be guilty of murder” and in paragraph 5 of the charge instructed the jury that “The term ‘voluntary’ means done of one’s own free will and accord, without the interference of another; with the intent to accomplish the reasonable and probable consequences of the act done” and in applying the law to the facts the Court in paragraph 7 of the charge required the jury to find that appellant “did unlawfully, voluntarily, and with his malice aforethought, kill Cynthia Riggins * * ” before finding him guilty of murder with malice aforethought. Su'ch instruction in effect required the jury to find that appellant had an intent to kill and we find no fundamental defect therein.
The case of Miller v. State, 112 Tex.Cr.R. 125, 13 S.W.2d 865, relied upon by appellant is not here controlling because in that case the Court nowhere required the jury to find the existence of an intent to kill; nor are the cases of Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558 and Smith v. State, 155 Tex.Cr.R. 190, 233 S.W.2d 138 because in the Baylor case a proper exception was reserved to the Court’s charge and in the Smith case the prosecution was for assault with intent to murder and not murder.
Appellant further complains of the Court’s charge because of the failure to charge on aggravated assault. In the absence of an objection or exception to the charge or requested charge appellant is in no position to complain and the matter is not properly presented for review. Sheffield v. State, 151 Tex.Cr.R. 334, 206 S.W.2d 1016; Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90 and Vasquez v. State, 16 Tex.Cr.R. 63, 288 S.W.2d 100.
Appellant insists that the Court erred in permitting Dr. Orrahood to describe' the condition of the female organs of the deceased which he found in performing the autopsy over the objections that the doctor had testified that the cause of death of the deceased was damage to the brain and such testimony was therefore inflammatory. While the question is not properly presented for review, there being no formal bill of exception and the statement of facts is in narrative form (Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946), we have, in view of the penalty assessed, considered the question and find no error in permitting the testimony. See Thompson v. State, Tex.Cr.App., 310 S.W.2d 108, and cases there cited on the question.
The evidence sufficiently supports the jury’s verdict and warrants the punishment assessed. A review of the record does not reflect any reversible error, therefore;
The judgment of the trial court is affirmed.
Opinion approved by the court.