CHRISTIAN, Judge.
The offense is murder; the punishment, confinement in the penitentiary for twenty-five years.
It was charged in the indictment, in substance, that appelant, with malice aforethought, killed Leon Kemp by shooting him with a gun. The testmony adduced by the State was, in substance, as follows: Deceased resided with his father in the family home which was about three and one-fourth miles from the town of Booker. On the night of December 23, 1933,
someone drove to deceased’s home and honked the automobile horn. Deceased, who was reading, threw his book aside and went outside. Immediately after he got out of the house the party in the automobile shot him down. Upon going outside, the father of deceased saw the automobile moving away. Its lights were not burning. Deceased expired before' he could be moved into the house. Shortly after the homicide appellant appeared at the telephone office in Lipscomb and asked the operator to call the sheriff. Appellant said to her: “I want the sheriff. I am the man that has been wanting the sheriff.” She answered that she had been unable to get the sheriff and asked appellant if she could get some one else. Appellant replied: “Yes, m’am, anybody that can lock me up will do me good. I want to be locked up. Anybody that can lock me up will do me good.” Appellant made the further statement to her that he lived at Booker, where he was a rural mail carrier. He said: “I have been a mail carrier there for years but I wont be any more.” When the sheriff appeared appellant told him that he was in trouble again. He stated to the sheriff that he had shot deceased, and showed him the pistol he had used.
Appellant did not testify, but introduced several witnesses who gave testimony to the effect that appellant had been a regular drinker of intoxicants for several years; that since the war he had been very nervous; that he had a half-sister who was afflicted at times with a mental or nervous disorder; that he had a cousin who was insane and had been confined in an asylum; that appellant at times accused his best friends of being intimate with his wife; that the charge was without foundation, his wife being well-behaved; that frequently appellant told some of his children that he was not their father, as their mother had had relations with other men. Several witnesses expressed the opinion that when appellant was laboring under the delusion that his wife was having sexual relations with other men he was insane. A physician testified for appellant, in answer to hypothetical questions, that in his opinion appellant was suffering from insane delusions when he killed deceased and did not know the difference between right and wrong. Again, he testified: “And I would further say that at the time of the killing, based upon the facts aforesaid, that he did not know the difference between right and wrong, as connected with the killing of that man, though he might have known the difference between right and wrong, so far as the faithfulness or unfaithfulness of his wife was
concerned, — he could have known that and with relation to other matters, such as theft, for instance, he could have known the difference between right and wrong with reference to that, if it had nothing to do with the crime that he was about to commit.” He testified, further, that from his observation of appellant he was of the opinion that he was insane.
Appellant’s wife took the stand in behalf of her husband and testified that he had accused her on numerous occasions of having illicit relations with other men. She denied that she had indulged in any improper conduct and stated that, in her opinion, appellant was insane when laboring under the belief that she was untrue to him. She testified, further, that about a week before the homicide she was at a dance which was attended by deceased; that deceased was sitting by her, with his arm around her chair, begging her to dance with him when appellant came up and told her she could get up and let deceased take her home; that she went outside and sat in her car; that deceased came by and again asked her to go in and dance with him; that appellant came out to the car and deceased went away; that on the way home appellant cursed her and accused her of having improper relations with deceased; that she denied it; that on the morning of the day of the homicide appellant went on his usual route delivering the mail; that he came in at noon and told her to get ready and they would go driving after lunch; that later he went to town and bought some clothing; that he returned home some time just after dark; that she had been in a hospital where she had an operation performed, and was lying on a couch resting; that appellant threw his hat and coat down and told her that deceased had been there having improper relations with her; that appellant called her a whore and a bitch; that becoming tired of appellant’s raving, she falsely stated to him that she had been having sexual relations with deceased; that appellant left the house. Appellant killed deceased the same night.
While appellant drank whisky, the testimony of his witnesses was to the effect the he never became intoxicated. He was conscientious and efficient in the performance of his. duties as a mail carrier.
The matters relied upon for a reversal will be considered in. the order in which they are presented in appellant’s brief.
Appellant excepted to the charge of the court for its failure in making application of the law of murder to the facts “to exclude and negative the defensive theory of insanity.” The-court charged the jury, in paragraph 6, as follows: “Now if
you find and believe from the evidence in this case beyond a-reasonable doubt that defendant R. L. Pounds, in the County of Lipscomb and State of Texas on or about the 23rd day of December, 1933, with malice aforethought, and not under circumstances that would reduce the killing to murder without malice, did voluntarily kill the said Leon Kemp by then and there shooting him with a pistol, as alleged in the indictment,' you will find the defendant guilty of murder with malice aforethought and assess his punishment at death or confinement in the penitentiary for life or for any term of years not less than two.”
Appellant contends that the court should have embraced-in the foregoing instruction a further statement to the effect that before the jury could convict him they must believe that appellant was not insane. If this negative had been placed in the charge it would have shifted the burden to the State to prove beyond a reasonable doubt that appellant was not insane at the time he killed deceased. The burden was on appellant to establish his defense of insanity by a preponderance of the evidence. The court was not in error in declining to respond to the exception.
It appears from bill of exception No. 2 that a physician testified, in answer to hypothetical questions propounded by appellant’s counsel, that appellant was suffering from insane delusions at the time he killed deceased.
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CHRISTIAN, Judge.
The offense is murder; the punishment, confinement in the penitentiary for twenty-five years.
It was charged in the indictment, in substance, that appelant, with malice aforethought, killed Leon Kemp by shooting him with a gun. The testmony adduced by the State was, in substance, as follows: Deceased resided with his father in the family home which was about three and one-fourth miles from the town of Booker. On the night of December 23, 1933,
someone drove to deceased’s home and honked the automobile horn. Deceased, who was reading, threw his book aside and went outside. Immediately after he got out of the house the party in the automobile shot him down. Upon going outside, the father of deceased saw the automobile moving away. Its lights were not burning. Deceased expired before' he could be moved into the house. Shortly after the homicide appellant appeared at the telephone office in Lipscomb and asked the operator to call the sheriff. Appellant said to her: “I want the sheriff. I am the man that has been wanting the sheriff.” She answered that she had been unable to get the sheriff and asked appellant if she could get some one else. Appellant replied: “Yes, m’am, anybody that can lock me up will do me good. I want to be locked up. Anybody that can lock me up will do me good.” Appellant made the further statement to her that he lived at Booker, where he was a rural mail carrier. He said: “I have been a mail carrier there for years but I wont be any more.” When the sheriff appeared appellant told him that he was in trouble again. He stated to the sheriff that he had shot deceased, and showed him the pistol he had used.
Appellant did not testify, but introduced several witnesses who gave testimony to the effect that appellant had been a regular drinker of intoxicants for several years; that since the war he had been very nervous; that he had a half-sister who was afflicted at times with a mental or nervous disorder; that he had a cousin who was insane and had been confined in an asylum; that appellant at times accused his best friends of being intimate with his wife; that the charge was without foundation, his wife being well-behaved; that frequently appellant told some of his children that he was not their father, as their mother had had relations with other men. Several witnesses expressed the opinion that when appellant was laboring under the delusion that his wife was having sexual relations with other men he was insane. A physician testified for appellant, in answer to hypothetical questions, that in his opinion appellant was suffering from insane delusions when he killed deceased and did not know the difference between right and wrong. Again, he testified: “And I would further say that at the time of the killing, based upon the facts aforesaid, that he did not know the difference between right and wrong, as connected with the killing of that man, though he might have known the difference between right and wrong, so far as the faithfulness or unfaithfulness of his wife was
concerned, — he could have known that and with relation to other matters, such as theft, for instance, he could have known the difference between right and wrong with reference to that, if it had nothing to do with the crime that he was about to commit.” He testified, further, that from his observation of appellant he was of the opinion that he was insane.
Appellant’s wife took the stand in behalf of her husband and testified that he had accused her on numerous occasions of having illicit relations with other men. She denied that she had indulged in any improper conduct and stated that, in her opinion, appellant was insane when laboring under the belief that she was untrue to him. She testified, further, that about a week before the homicide she was at a dance which was attended by deceased; that deceased was sitting by her, with his arm around her chair, begging her to dance with him when appellant came up and told her she could get up and let deceased take her home; that she went outside and sat in her car; that deceased came by and again asked her to go in and dance with him; that appellant came out to the car and deceased went away; that on the way home appellant cursed her and accused her of having improper relations with deceased; that she denied it; that on the morning of the day of the homicide appellant went on his usual route delivering the mail; that he came in at noon and told her to get ready and they would go driving after lunch; that later he went to town and bought some clothing; that he returned home some time just after dark; that she had been in a hospital where she had an operation performed, and was lying on a couch resting; that appellant threw his hat and coat down and told her that deceased had been there having improper relations with her; that appellant called her a whore and a bitch; that becoming tired of appellant’s raving, she falsely stated to him that she had been having sexual relations with deceased; that appellant left the house. Appellant killed deceased the same night.
While appellant drank whisky, the testimony of his witnesses was to the effect the he never became intoxicated. He was conscientious and efficient in the performance of his. duties as a mail carrier.
The matters relied upon for a reversal will be considered in. the order in which they are presented in appellant’s brief.
Appellant excepted to the charge of the court for its failure in making application of the law of murder to the facts “to exclude and negative the defensive theory of insanity.” The-court charged the jury, in paragraph 6, as follows: “Now if
you find and believe from the evidence in this case beyond a-reasonable doubt that defendant R. L. Pounds, in the County of Lipscomb and State of Texas on or about the 23rd day of December, 1933, with malice aforethought, and not under circumstances that would reduce the killing to murder without malice, did voluntarily kill the said Leon Kemp by then and there shooting him with a pistol, as alleged in the indictment,' you will find the defendant guilty of murder with malice aforethought and assess his punishment at death or confinement in the penitentiary for life or for any term of years not less than two.”
Appellant contends that the court should have embraced-in the foregoing instruction a further statement to the effect that before the jury could convict him they must believe that appellant was not insane. If this negative had been placed in the charge it would have shifted the burden to the State to prove beyond a reasonable doubt that appellant was not insane at the time he killed deceased. The burden was on appellant to establish his defense of insanity by a preponderance of the evidence. The court was not in error in declining to respond to the exception.
It appears from bill of exception No. 2 that a physician testified, in answer to hypothetical questions propounded by appellant’s counsel, that appellant was suffering from insane delusions at the time he killed deceased. Upon cross-examination of the witness, counsel for the State propounded to him the following question: “Doctor, in view of the condition of the defendant as to his having these delusions as disclosed by the testimony and the hypothetical questions propounded, do you think that the fact that the defendant killed one man would have the effect to cure him of his delusions and that he might not have any more delusions?” Before appellant’s counsel had time to object, the witness answered that he did not believe it would have such effect. Upon objection being made, the court instructed the jury not to consider the question and answer. We are unable to reach the conclusion that the testimony was improper. However, if it should be conceded that it should not have been received, we think the prompt action of the court in instructing the jury to disregard it saved appellant from harm.
It is shown in bill of exception No. 15 that one of counsel for the State, in the closing argument, used language as follows: “You go home and tell your children, your boy, that you turned a man loose who went out in the nighttime
and called a man to the door and shot him down like a dog and your boy will ask you why you did that and you say ‘Because he was insane,’ and your boy will run to his mother and hide his head in shame.”
The bill of exception fails to show what action the court took when appellant objected to the argument. If it should be conceded that the argument was improper, the bill is insufficient in failing to show that the trial judge made any ruling on the matter, or was requested to do so. 4 Tex. Jur., 395; Watson v. State, 287 S. W., 265.
Bill of exception No. 12 recites that, in his opening argument, counsel for the State used language as follows: “Mrs. Pounds (defendant’s wife) should have taken a gun years ago and killed the defendant.” Appellant objected to the remarks of counsel. The bill also fails to show what action the court took, and is therefore insufficient.
Bill of exception No. 13 shows that counsel for the State, in argument, used language as follows: “You do not think that this woman (referring to defendant’s wife) made any such statement to this defendant. The idea is preposterous. They had to have something like that in this case to save the defendant’s hide.”
It is shown in the bill that appellant’s wife testified that she had stated to appellant shortly before the homicide that deceased had had sexual intercohrse with her. Her testimony was to the further effect that the statement she made was not true but that, in view of the fact that appellant had persisted in accusing her of having improper relations with decased, she made the statement referred to. This bill is in the same attitude as bill of exception 12. It fails to show what action the court took when the argument was objected to. In any event, we are of the opinion that the argument was proper.
Bill of exception No. 14 presents the following occurrence: In his opening argument to the jury counsel for the State asked that the death penalty be assessed against appellant. At this juncture appellant jumped to his feet, and, turning to the audience, shouted: “I am ready to take it.” Continuing his argument, the district attorney said: “Pretty good performance. The defendant says he is ready to pay the penalty and we say ‘Let him pay it.’ ” The court instructed the jury not to consider the remarks of the district attorney for any purpose. We are constrained to hold that the bill of exception fails to reflect error.
Bill of exception No. 11 shows that counsel for the State,.
in argument, used language as follows: “Leon Kemp (deceased) is not here. He is lying under the sod and cannot tell you what to do with the defendant.” We do not deem the argument to be of such a nature as to call for reversal.
It is shown in bill of exception 9 that appellant’s written requested instruction No. 2 was refused. This instruction read as follows: “Gentlemen of the jury, you are instructed that in law a delusion is the same as insanity.” In the bill of exception No. 10 it is shown that the following requested instruction was refused: “You are instructed that even though you should believe from the evidence that the defendant was sane and normal in every other phase of life, save and except on the question of the chastity of his wife, the fact of his being sane and normal in such other phases of life would not impinge upon the defendant’s theory of insanity on the question of his wife’s chastity, and his acts committed while under the influence of such insanity, if you should find that he was so insane on that particular question, and his sanity on such other phases of life should not be considered by you in determining whether or not he was insane on the question of his wife’s chastity, and your inquiry as to whether or not he was insane in the commission of the act with which he is charged will be directed to his delusions as to the chastity of his wife.” We think both requested instructions embody incorrect propositions of law. The latter instruction is clearly on the weight of the evidence. Under the circumstances, there was no error in refusing to charge the jury as requested. The court gave a charge • on insanity.
We are unable to agree with appellant’s contention that the evidence is insufficient to support the conviction.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.