DAVIDSON, Judge.
The offense is murder; the punishment, death.
In March, 1948, Betty Jane Allston, the daughter of R. L. Allston, deceased,. met appellant while each was a student in Denton, Texas. Within a period of four months the acquaintance had progressed to the point that they had become engaged to be married the following December. On the evening of July 5, 1948, appellant, Betty Jane Allston, Mrs. Allston, and the deceased met at the Allston home in Lubbock, Texas, to discuss the marital plans. Deceased registered an objection, suggesting that the marriage be postponed until after they had finished school. Appellant became angered at this, and made the statement that he was going to marry the daughter regardless of the opposition. Appellant and Betty Jane then left the house to take a walk and discuss the situation. Appellant wrested the engagement ring from the girl’s finger, throwing it down but shortly thereafter retrieving it. At that time he told her he was going to marry her and if her mother and father tried to come between them he would kill the entire family.
The next day, July 6, appellant went to a pawn shop and there priced, with the view of purchasing it, a pistol. The purchase was not completed, appellant advising that he would come back later. On the morning of the next day, July 7, appellant appeared at the Allston home. He again asked Betty Jane if she was going to marry him, to which inquiry he received no answer. Appellant is next seen back at the pawn shop, where he purchased the .38 pistol.
It appears that appellant, after purchasing the pistol, went direct to the Allston home, where he talked with the deceased, whom he asked: “Does that mean that I am through?” Deceased was heard to give an affirmative reply. Whereupon, a shot was heard and deceased lay mortally wounded, with a bullet through his neck from which he died a few hours thereafter.
After the shooting, under circumstances strongly suggesting [642]*642a kidnaping, appellant commandeered Bill Garrett and compelled him to drive him to Brownfield, Texas. To Garrett, appellant admitted that he had killed deceased.
The following day, July 8, appellant was arrested in Austin, Texas, in possession of the pistol which he had the previous day purchased at the pawn shop in Lubbock.
The sole defense was that of insanity, it being contended that appellant was insane both at the time of the commission of the alleged offense and at the time of the trial.
No necessity exists to state at length the evidence supporting this defensive theory. It is sufficient to say that it is difficult to understand how a stronger defense of insanity could be developed in the trial of a. criminal case. We say this in view, especially, of the fact that the medical and expert witnesses all agreed that the appellant was suffering from some abnormal mental condition or dementia. Prominent psychiatrists attested the fact that such condition rendered the appellant incapable of knowing right from wrong or the nature and extent of his acts. On the other hand, Dr. Baugh, testifying in behalf of the state and after conceding that appellant was, from a medical standpoint, insane, testified as follows:
“I simply say that he still had mind enough to know the right and wrong of his act on July 7 and'to know the nature and consequences of his acts.”'
This statement by the witness, in connection with" his other testimony, very clearly draws the distinction between medical and legal insanity. From a medical standpoint, one may be insane by reason of mental disease or mania, yet, from a legal asrect. not unless or until his mental condition has reached the point where he is unable to distinguish right from wrong and to know the nature and consequences of his acts is he exonerated or excused from crime committed while in that condition. Ross v. State, 153 Tex. Cr. R. 312, 220 S. W. 2d 137.
The facts support the jury’s conclusion, and appellant’s contrary contention is overruled.
In the fall of 1942, appellant enlisted in the Army and, shortly thereafter, saw service in Italy. It appears that he went AWOL end w^s sen! to •"•n air force stockade, and from there was sert to a hospital, where his condition'was diagnosed as “psychosis,” and on June 5, 1944, as “dementia praecox, [643]*643paranoid type.” On successive dates thereafter, June 13 and July 2, 1944, he was transferred to other hospitals, the July 2nd transfer being to Stark General Hospital, where the diagnosis was continued. Thereafter, on July 9, 1944, he was again transferred, and admitted to Darnall General Hospital.
On September 4, 1944, a board of medical officers, after having appellant under observation for approximately two months, recommended his discharge from the Army because of a finding that he was suffering from dementia praecox, unqualified. Because of such condition appellant was, on September 26, 1944, discharged from the Army.
He returned home, and in the time intervening between that date and July 26, 1947,-was a student in some five different schools and universities. •
On the date last mentioned he was, by order of the county judge of Travis County, upon the testimony of two reputable physicians, committed to the Veterans Hospital at Waco, Texas, for a period of ninety- days for observation and treatment for mental disease.
It is appellant’s contention that the order and finding of dementia praecox, unqualified, by the medical board ahd appellant’s discharge because of that condition constitute such finding and judgment as to have the effect of an adjudication that appellant was, at that time, an insane person. Likewise, it is insisted that such is the effect of the order of the County Judge of Travis County committing appellant to the Veterans Hospital for observation.
In view of this contention, appellant insisted throughout the trial that he was entitled to have his insanity defense submitted from the standpoint that he was presumed to be insane rather than sane, and that he should not have been required to establish his defense of insanity before the jury by a preponderance of the evidence.
If the orders and decrees mentioned are to be construed as adjudicating appellant a lunatic or person of unsound mind, then his contention would be correct, because an unvacated judgment of insanity shifts the burden of proof to the state to establish the sanity of the accused rather than place the burden of proof upon a defendant to prove his insanity by a preponderance of [644]*644the evidence. Glover v. State, 125 Tex. Cr. R. 605, 69 S. W. 2d 136.
In order for the decree of the military tribunal, as well as the order of the county judge, to have the legal effect of adjudicating appellant as a person of unsound mind, it is necessary, first, that jurisdiction to render such decree exist. Under the laws of this state, one can be adjudicated a lunatic or person of unsound mind only at and by the verdict of a jury. Unless and until a jury has so determined, there can be no adjudication of that fact. It is apparent, therefore, that appellant’s contention in this respect is untenable.
Under the laws of this state, jurisdiction of the trial of lunatics or persons of unsound mind not charged with a criminal offense is in the county court. A judgment adjudicating one to be of unsound mind can be entered only upon the verdict of a jury so finding. Title 92, R. C. S.
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DAVIDSON, Judge.
The offense is murder; the punishment, death.
In March, 1948, Betty Jane Allston, the daughter of R. L. Allston, deceased,. met appellant while each was a student in Denton, Texas. Within a period of four months the acquaintance had progressed to the point that they had become engaged to be married the following December. On the evening of July 5, 1948, appellant, Betty Jane Allston, Mrs. Allston, and the deceased met at the Allston home in Lubbock, Texas, to discuss the marital plans. Deceased registered an objection, suggesting that the marriage be postponed until after they had finished school. Appellant became angered at this, and made the statement that he was going to marry the daughter regardless of the opposition. Appellant and Betty Jane then left the house to take a walk and discuss the situation. Appellant wrested the engagement ring from the girl’s finger, throwing it down but shortly thereafter retrieving it. At that time he told her he was going to marry her and if her mother and father tried to come between them he would kill the entire family.
The next day, July 6, appellant went to a pawn shop and there priced, with the view of purchasing it, a pistol. The purchase was not completed, appellant advising that he would come back later. On the morning of the next day, July 7, appellant appeared at the Allston home. He again asked Betty Jane if she was going to marry him, to which inquiry he received no answer. Appellant is next seen back at the pawn shop, where he purchased the .38 pistol.
It appears that appellant, after purchasing the pistol, went direct to the Allston home, where he talked with the deceased, whom he asked: “Does that mean that I am through?” Deceased was heard to give an affirmative reply. Whereupon, a shot was heard and deceased lay mortally wounded, with a bullet through his neck from which he died a few hours thereafter.
After the shooting, under circumstances strongly suggesting [642]*642a kidnaping, appellant commandeered Bill Garrett and compelled him to drive him to Brownfield, Texas. To Garrett, appellant admitted that he had killed deceased.
The following day, July 8, appellant was arrested in Austin, Texas, in possession of the pistol which he had the previous day purchased at the pawn shop in Lubbock.
The sole defense was that of insanity, it being contended that appellant was insane both at the time of the commission of the alleged offense and at the time of the trial.
No necessity exists to state at length the evidence supporting this defensive theory. It is sufficient to say that it is difficult to understand how a stronger defense of insanity could be developed in the trial of a. criminal case. We say this in view, especially, of the fact that the medical and expert witnesses all agreed that the appellant was suffering from some abnormal mental condition or dementia. Prominent psychiatrists attested the fact that such condition rendered the appellant incapable of knowing right from wrong or the nature and extent of his acts. On the other hand, Dr. Baugh, testifying in behalf of the state and after conceding that appellant was, from a medical standpoint, insane, testified as follows:
“I simply say that he still had mind enough to know the right and wrong of his act on July 7 and'to know the nature and consequences of his acts.”'
This statement by the witness, in connection with" his other testimony, very clearly draws the distinction between medical and legal insanity. From a medical standpoint, one may be insane by reason of mental disease or mania, yet, from a legal asrect. not unless or until his mental condition has reached the point where he is unable to distinguish right from wrong and to know the nature and consequences of his acts is he exonerated or excused from crime committed while in that condition. Ross v. State, 153 Tex. Cr. R. 312, 220 S. W. 2d 137.
The facts support the jury’s conclusion, and appellant’s contrary contention is overruled.
In the fall of 1942, appellant enlisted in the Army and, shortly thereafter, saw service in Italy. It appears that he went AWOL end w^s sen! to •"•n air force stockade, and from there was sert to a hospital, where his condition'was diagnosed as “psychosis,” and on June 5, 1944, as “dementia praecox, [643]*643paranoid type.” On successive dates thereafter, June 13 and July 2, 1944, he was transferred to other hospitals, the July 2nd transfer being to Stark General Hospital, where the diagnosis was continued. Thereafter, on July 9, 1944, he was again transferred, and admitted to Darnall General Hospital.
On September 4, 1944, a board of medical officers, after having appellant under observation for approximately two months, recommended his discharge from the Army because of a finding that he was suffering from dementia praecox, unqualified. Because of such condition appellant was, on September 26, 1944, discharged from the Army.
He returned home, and in the time intervening between that date and July 26, 1947,-was a student in some five different schools and universities. •
On the date last mentioned he was, by order of the county judge of Travis County, upon the testimony of two reputable physicians, committed to the Veterans Hospital at Waco, Texas, for a period of ninety- days for observation and treatment for mental disease.
It is appellant’s contention that the order and finding of dementia praecox, unqualified, by the medical board ahd appellant’s discharge because of that condition constitute such finding and judgment as to have the effect of an adjudication that appellant was, at that time, an insane person. Likewise, it is insisted that such is the effect of the order of the County Judge of Travis County committing appellant to the Veterans Hospital for observation.
In view of this contention, appellant insisted throughout the trial that he was entitled to have his insanity defense submitted from the standpoint that he was presumed to be insane rather than sane, and that he should not have been required to establish his defense of insanity before the jury by a preponderance of the evidence.
If the orders and decrees mentioned are to be construed as adjudicating appellant a lunatic or person of unsound mind, then his contention would be correct, because an unvacated judgment of insanity shifts the burden of proof to the state to establish the sanity of the accused rather than place the burden of proof upon a defendant to prove his insanity by a preponderance of [644]*644the evidence. Glover v. State, 125 Tex. Cr. R. 605, 69 S. W. 2d 136.
In order for the decree of the military tribunal, as well as the order of the county judge, to have the legal effect of adjudicating appellant as a person of unsound mind, it is necessary, first, that jurisdiction to render such decree exist. Under the laws of this state, one can be adjudicated a lunatic or person of unsound mind only at and by the verdict of a jury. Unless and until a jury has so determined, there can be no adjudication of that fact. It is apparent, therefore, that appellant’s contention in this respect is untenable.
Under the laws of this state, jurisdiction of the trial of lunatics or persons of unsound mind not charged with a criminal offense is in the county court. A judgment adjudicating one to be of unsound mind can be entered only upon the verdict of a jury so finding. Title 92, R. C. S. Likewise, such is true where a trial is had incident to or in connection with a criminal action. We know of no authority whereby a judge or administrative tribunal has authority to adjudicate one to be a lunatic or person of unsound mind. It has been held that such could not be done even though authorized by statute. White v. White, (Tex. Civ. App.), 183 S. W. 369, 196 S. W. 508. It is apparent there fore, that appellant’s contention was properly overruled by the trial court.
Art. 34, P. C., provides (a) that no act done in a state of insanity can be punished as an offense, and (b) that one who becomes insane after the commission of an offense cannot be tried while in that condition. The first of these — that is, insanity at the time of the commission of the alleged act, is a complete defense against the act charged, while the other is not a defense to the act charged but has the effect, only, of barring a trial so long as the insanity exists.
The instant facts raise both of these issues. It goes without saying, then, that appellant was entitled to have the jury instructed in accordance with these defenses. The trial court so recognized, and submitted the defense of insanity at the time of the commission of the alleged offense, in the 16th paragraph of his charge, as follows:
“Now, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Richard W. McGee, did kill the said R. L. Allston by shooting him with a gun, as charged in the indictment, but you further believe from a preponderance [645]*645of the evidence that, at the very time he committed the act, the defendant, Richard W. McGee, did not have sufficient mental capacity, resulting from dementia praecox, or schizophrenia, or manic-depressive, or either of the aforementioned, or from any disease of the mind or any form insanity, to know the nature, quality or consequences of the very act he was committing, or, if he did know the nature, quality or consequences of the act, yet he did not know he was doing wrong, or did not know the difference between right and wrong as to the particular act charged against him in this cause, then you will find him not guilty on the grounds of insanity, and let your verdict so say.”
The forms of verdict in connection with the above charge were given as follows:
“If you find the defendant not guilty on the grounds of insanity as set forth in the preceding paragraph No. 16, the form of your verdict will be either the following:
“ ‘We, the Jury, find the defendant not guilty on the grounds of insanity at the time the act is alleged to have been committed, but sane at the time of this trial,’ or
“ ‘We, the jury, find the defendant not guilty on the grounds of insanity at the time the act is alleged to have been committed, and insane at the time of this trial.’ ”
This issue of insanity at the time of trial was submitted as follows:
“Now, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Richard W. McGee, did kill the said R. L. Allston by shooting him with a gun, as charged in the indictment, but you further believe, from a preponderance of the evidence, that at the time of this trial, the defendant, Richard W. McGee, does not have sufficient mental capacity, resulting from dementia praecox, or Schizophrenia, or Manic-depressive, or either of the aforementioned, or from any disease of the mind, or any form of insanity to know the nature, quality or consequences of the act with which he is charged, or to understand the difference between right and wrong, or to make a rational defense against the act charged, then you will find by your verdict that the defendant is insane at the time of this trial.”
In connection with said charge, the jury was further instructed as follows:
[646]*646“In the event you should find and determine, from a preponderance of the evidence that the defendant is insane at the time of this trial, then you will further find and determine under the instructions given you in Paragraph 16, of this Charge, whether the defendant was sane or insane at the time of the alleged offense.
“Now, if you find the defendant, Richard W. McGee, was sane at the time the act is alleged to have been committed but insane at the time of this trial, the form of your verdict will be as follows:
“ ‘We, the jury, find the defendant to have been sane at the time the act is alleged to have been committed but insane at the time of this trial.’ ”
Appellant insists that these charges, submitting, respectively, insanity, at the time of "the commission of the alleged offense and at the time of trial," plaice an undue burden and limitation upon him. In this connection he insists that nowhere is the jury authorized or required to find upon each • of the insanity pleas without, in connection therewith, making other and additional findings touching his sanity or insanity.
.In charging the jury as he did, the trial court appears to have been so authorized' to do by the provisions of Sec. 2 of Art. 932a, Vernon’s C. C. P. We are unable to say, therefore, that the trial court was not justified in so doing.
Appellant insists that he was entitled to have the jury instructed to the effect that if they entertained a reasonable doubt as to his insanity at the time of the commission of the alleged offense and at the time of the trial, such doubt should be resolved in his favor.
To have given such a charge would have shifted the burden to the state of proving appellant sane at the times he insists he was insane — which would be contrary to the presumption that all persons are sane.
As supporting his contention, appellant cites the cases of Johnson v. State, 150 Tex. Cr. R. 411, 201 S. W. 2d 832; Dent v. State, 46 Tex. Cr. R. 166, 79 S. W. 525; Williams v. State, 37 Tex. Cr. R. 348, 39 S. W. 687.
The holding in these cases was founded upon facts showing,, or tending to show, that the accused was rendered mentally in[647]*647capable by reason of some blow or injury inflicted immediately before the time or in connection with the commission of the act for which he was upon trial. Thé instant facts show no such condition.
Dr. White, a psychiatrist, upon direct examination, testified in support of appellant’s insanity defense. Upon cross-examination, state’s counsel inquired of the witnesses: “. . . is there anything abnormal in students going to classes and making their grades as this Defendant did at North Texas State Teachers College in the Spring Semester of 1948?”
Counsel for" appellant objected to the question unless the state could show-that the appellant had made his grades at the school and át thfe time inquired about. As to the objection, the trial court stated, “I think that is well taken.”
Thereupon, counsel for the state said in .presence of the jury:"
“If the Court please,' we haven’t it ".(referring to" the testimony that McGee made his grades at North Texas State Teachers College) in the shape that we can prove it. W'e have a statement that it is not in shape to prove it up, so I will withdraw the question.” (Italics supplied.)
Appellant’s objection to that part of the statement italicized above was by the trial court sustained and, upon appellant’s request, the trial court instructed the jury not to consider for any purpose “the remarks of counsel■ about grades that the Defendant might have made in North Texas State Teachers College.”
The bill of exception presenting this matter contains the following certificate, viz.:
“be it further remembered, that in this manner the State’s private prosecutor, the Honorable George W. Dupree, placed in evidence a fact highly important and militating against the Defendant’s defense of insanity, which was not supported by the evidence. And the State’s counsel, in open Court, when the Defendant objected to this being made, stated in intensifying the error, that he did not have proof of the facts that the Defendant made his grades at North Texas State Teachers College, in the Spring Semester of 1948, in shape to prove it up before the jury. He made the statement that he did" have a statement to that effect, but that it was not in shape to prove up before the jury, so he withdrew his question.”
[648]*648Appellant insists, first, that the statement of state’s counsel as to appellant making his grades was such an error as could not be cured by the trial court’s instruction, and, second, that the certificate above quoted constitutes a certificate of error by the trial court.
There is no question but that counsel for the state should not, directly or by reference, have gotten before the jury, as was here done, the fact or impression that appellant made his grades in school unless he was in position to establish such fact by proof. This is the effect of the trial court’s certificate in the bill of exception. The trial court did not certify, and we are unable to reach the conclusion, that the matter was of such á prejudicial or erroneous nature as that it could not be withdrawn from the jury by the trial court’s instruction.
Appellant argues, in support of his position that the error above mentioned constitutes reversible error, that, this being a death penalty case, this court should not speculate as to the harmful effect thereof and he cites authorities supporting his position, among which is Fritts v. State, 114 Tex. Cr. R. 542, 26 S. W. 2d 643.
The disposition we make does not require us to speculate as to injury. What we hold is that the statement of state’s counsel was such as could be, and was, effectually withdrawn from the jury.
In bis closing argument, state’s counsel made the following statement to the jury:
“I want you to understand that my position in this case is in no way a matter of private prosecution, as Mr. Burks has tried to leave the impression that this case was built around private prosecution. I stand before you, representing the State of Texas. I stand before you, representing justice, in what I consider to be a cold blooded murder case.”
Appellant’s objection to the statement, and especially the reference to “a cold blooded murder case,” was sustained, and the jury were instructed not to consider the statement.
Appellant insists that, notwithstanding such instruction, reversible error is reflected because the reference to a “cold blooded murder case” constituted unsworn testimony by counsel for the state. The case of Dowd v. State, 104 Tex. Cr. R. 480, 284 S. W. 592, is cited as supporting appellant’s contention. In [649]*649that case, the argument held to be erroneous was “to the effect that there was gold in the pocket of one of defendant’s attorneys that belonged to deceased, and to his apology to deceased’s wife for failing to subpoena the long list of witnesses handed him by her, from whom he could have proved the good reputation of deceased, but didn’t think it necessary, and that he knew all about how the killing occurred, and that it was not justified but was cold-blooded murder. This argument was improper, out of the record, and should not have been made. Frazier v. State, 100 Tex. Cr. R. 157, 272 S. W. 454; Skirlock v. State, 100 Tex. Cr. R. 178, 272 S. W. 782.”
While it is true that in the latter part of the argument the statement was made “that he knew all about how the killing occurred, and that it was not justified, but was cold-blooded murder,” there is nothing to show that the reversal was predicated upon this particular part of the argument, as distinguished from the argument as a whole. But be that as it may, there is quite a difference between the statement used in the Dowd case and that used in the instant case. In the Dowd case the argument appears definite as a statement by counsel of what he knew as a fact, while here the argument complained of constitutes pnly the expression of an opinion. From the standpoint of the state, the killing was cold-blooded. We are unable to agree that counsel for the state was not justified in stating to the jury that he so considered the case.
There was testimony showing that some years prior to the homicide and while appellant was a student in the San Marcos Baptist Academy he received a severe head injury by reason of falling from the dome of the school building.
Special prosecutor, in opening argument to the jury in connection with said proof, made the following statement to the jury:
“There, day after day, for over a year, this crazy boy, away from home and boarding there, makes his grades and you know, you know that with the power of this defense that somewhere, some place, if he was so crazy, that they could have found somebody in San Marcus Academy to tell you the facts about it.”
Appellant’s only objection registered to this argument was, “We take a bill to that argument.”
The objection was overruled.
[650]*650. v.-Thjg ,bj]jl' of exception presenting This matter contains .the following certificate: - ,
■“BÍMt further remembered, that in fact and in truth, prior to the time that Mr. Dujpree made the argument above quoted to -the' jury, which'he did do in the course of the first and opening ^argument made to the jury by any person, there was absolutely- no evidence'in-this case to show that Richard'W. McGee, while' he "was á student at the Baptist Academy at San Marcos, boarding away from home, had made his grades. And there was no evidence in this case to show that while a student at the Baptist Academy he did make his grades. And, further, there was no evidence in this case to show anything concerning the power of the defense, other than that it procured and put in evidence thé testimony of a defensive nature that is shown in the récord in this case.........
“be it further remembered, that in this manner, testimony was put before the jury, through Mr. Dupree’s argument, to the effect that the Defendant, Richard W. McGee, while a student at. San Marcos Baptist Academy, prior to the homicide, had made his grades in said Academy, and there was no evidence to support this.”
The trial court qualified the bill, as follows:
“The testimony of the witness, Mrs. H. H. Stull, was to the effect that as best she remembered the Defendant finished school that year. There was no testimony in the record that the Defendant failed to make his grades. Mrs. Stull did testify that shé thought he failed a subject or two but that she was not sure.”
The state challenges consideration of the bill of exception because the objection fails to register any specific objection to any particular part of the argument or to state any grounds for the objection whereby the trial court would be made acquainted with appellant’s complaint. The state’s position is sustained. Watkins v. State, 153 Tex. Cr. R. 559, 223 S. W. 2d 24, and authorities there cited.
Other bills of exception appearing in the record have been examined, and are overruled without discussion.
The jury having determined adversely to appellant the disputed issue of fact and there appearing no reversible error, the judgment is affirmed.
[651]*651Opinion approved by the court.