
    WREN v. STATE.
    (No. 8374.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.
    Rehearing Denied Oct. 8, 1924.)
    1. Criminal law <8=814 (3) — Unnecessary to submit issue not raised by testimony.
    It is unnecessary to submit issues not raised by testimony.
    2. Homicide <8=280 — Evidence of accidental shooting held-insufficient for jury.
    In murder prosecution, evidence held insufficient to take to jury question of accidental shooting.
    3. Witnesses <8=45(2)- — Admission of defendant’s seven year old child’s testimony in murder prosecution held not error.
    In prosecution for wife murder, admission of defendant’s seven year old child’s testimony as to circumstances of shooting, which occurred in her presence, held not error, on ground that she was too young to know or appreciate na-' ture and quality of oath.
    On Motion for Rehearing.
    4. Criminal' law <8=598(6) — Refusal to postpone or continue case because of lack of diligence in application, for process, not error.
    Court of Criminal Appeals will not reverse judgment of conviction for refusal to postpone or continue case because of lack of diligence in application .for process, by reason of defendant’s delay in arranging terms with counsel, with whom he communicated almost at once after killing.
    5. Criminal law <8=595(7) — Refusal of continuance to get witness, whom defendant had not seen or talked with since homicide, held not ground for reversal.
    Refusal of continuance to get witness to testify that he believed defendant temporarily insane from use of intoxicating liquor at time of homicide held not ground for reversal, where defendant had not seen or talked with such witness since homicide, and all he knew as to what witness would swear was on information and belief; source of which did not appear.
    6. Criminal law <8=596(2) — Refusal of continuance to get testimony as to facts not shown by other available witnesses not ground, for reversal.
    Refusal of continuance to get witness to testify that he believed defendant temporarily insane from recent use of intoxicating liquor at time of homicide held not ground for reversal, where no effort was made to prove temporary insanity by disinterested neighbors of defendant, and substantially same testimony as that expected was given, on basis of whose testimony physician, called on defendant’s behalf, declined to say he believed defendant insane.
    7. Criminal law <$==>! 141 (I) — 'Trial court’s ruling presumed correct until contrary shown.
    Presumption'is in favor of correctness of trial court’s ruling until contrary is shown.
    8. Criminal law <3=>364(5) — City marshal’s testimony as to statement by defendant shortly after shooting held material and part of res gestee.
    In prosecution for wife murder, testimony of city marshal, as to defendant’s statement shortly after shooting, while parties thereto were in room where it occurred, and defendant still had pistol used, that deceased had shot herself, helé material and part of res gestse.
    9. Criminal law <@=ol09(KI4) — Bill of exception must be taken to refusal of special charge.
    Bill of exceptions must be taken to refusal of special charge.
    Appeal from District Court, Kendall County; R. H. Burney, Judge.
    Charlie Wren was convicted of murder, and appeals.
    Affirmed.
    Joe H. H. Graham, of San Antonio, for appellant.
    Tom Garrard, State’s Atty., and Grover C. 'Morris, Asst. State’s Atty., both of Austin, for the State.'
   LATTIMORE, J.

Appellant was convicted in the district court of Kendall county of murder, and his punishment fixed at 50 years in the penitentiary.

Appellant was charged with the murder of his wife, and there is nothing in the record suggesting any doubt or denial of the fact that on the date alleged she met her death by being shot with a pistol. Beside appellant and his wife, their little daughter and appellant’s brother were in the house at time, and both testified substantially to the fact that appellant shot his wife.

There are 17 bills of exception in the record, each of which has been carefully examined and considered by us, but in none of which we observe any error calling for a reversal. By one of .said bills of exception complaint is made of the court’s failure and refusal to submit the issue of an accidental killing. That it is not necessary to submit any issue not raised by the testimony is well settled. Appellant placed upon the witness stand his brother, Grant Wren, who testified that he was in the house of appellant at the time of the shooting. This witness testified that he saw appellant go to the bed and reach under the pillow or bedding for the gun, and that the pistol went off; that he could not state whether appellant was firing it or not, because he was not paying that much attention. He said that appellant was drunk. This witness denied that appellant and his wife were quarreling, and on cross-examination testified that when appellant got the pistol he (witness) was leaving, and went out through the kitchen door, and that at the time the shot was fired he was going on outside and paid no attention to his brother or deceased. The following quotation may be taken from his testimony:

“I heard the shot as I went out of the kitchen. As I went out through the back way through the kitchen I heard a shot fired. That’s true, and that is the way I testified before the grand jury. That is the story I told the grand jury the day after the killing. I don’t remember seeing Christine anywhere then; I don’t remember whether she was in the room or not. I didn’t tell you what Charlie and Addie were talking about just before Charlie got the pistol. No, sir; I don’t remember anything that was said. Yes, sir; the only thing is that I saw Charlie get the pistol from under the pillow or under the mattress, and then I was leaving, arid when I was in the kitchen I heard the shot.”

At another place in the testimony of this-witness appears the foEowing:

“I didn’t know that Addie Wren was killed until after the officers came; I didn’t know she was shot. No, sir; I couldn’t see Addie-Wren as I was leaving at the kitchen, and I didn’t see Charlie and I didn’t see Addie at the-time the shot was fired. As to whether I didn’t testify before the grand jury that Addie was fussing at Charlie at the time he fired the-shot, I said which 'way they were standing. As to whether I didn’t state before the grand jury, ‘She was fussing at Charlie, but made no movement toward him,’ probably I did make that statement. * * * Now, I say that at the time the shot was fired I was in the kitchen,, going out the back way; well, yes, sir; that, is correct. I was going outside, yes, sir.
“Q. You were leaving when the shot was fired? A. I don’t remember how you asked me,, whether she was standing there and in what position, before that or afterwards. Yes, sir; I say now that when the shot was fired I was in the kitchen going the other way, I was going through the kitchen.
“Q. Out of the kitchen, to the outer door?1 A. I don’t remember. I might have been out of the door. I don’t remember just where I was.”

This is the only testimony upon which could be based any claim of an accidental shooting, and, in our opinion, it so far fails to present that issue as to justify the learned-trial judge in declining to submit it

The 7 year old child of appellant was-introduced as a witness for the state. Objection was made to her testimony on the-ground that she was too young to know or appreciate the nature and quality of an oath. The examination given her by the learned trial judge is fuUy set out in the bill of exceptions, and from same it appears clear that the child was qualified, and we do not think the court below in error in admitting her testimony. The child testified that her mother and father had been fussing, and that the mother was sitting on a trunk, and her father got the pistol and shot her mother, and that her mother ran out of the door and fell. Several witnesses for the state who lived near by testified that they heard the shot and saw the woman fall out of the house.

Appellant seems to place some reliance upon the proposition that the evidence raised the issue of temporary insanity, resulting from the recent use of intoxicating liquor. The court fully submitted the law governing such issue. We do not perceive anything, arising, or presented in any of the other bills of exception, calling for discussion.

No error appearing in the record, an af-firmance will be ordered.

On Motion for Rehearing.

In an able motion for rehearing, appellant stresses the court’s refusal to postpone or continue the case, and he insists that the motion for new trial should have been granted for such refusal. We have again carefully examined the matter. It appears that appellant communicated with an attorney almost at once after the killing. Without going into details, we state that this court can set no premium by reversal of cases upon the delay of parties in arranging terms with counsel whereby there appears to be a lack of diligence in the application for process.

We have again carefully reviewed the application for continuance and have concluded that the only advantage hoped therefrom was that appellant might get one Williams to testify that he believed appellant temporarily insane from the recent use of intoxicating liquor at the time he killed his wife. It appears to be purely conjectural as to whether such would have been the testimony of 'Williams, if present. This we gather to be the fact, from careful examination of bill of exceptions No. 5. It is there stated that appellant had not seen or talked with said witness since the homicide, and that all he knows, about what witness would swear is upon information and belief. How he got the information or what formed the source of his belief is not made to appear. The courts cannot set aside judgments upon such showing.

Not only so, but the record shows that a" number of disinterested neighbors of appellant were near by and across the street from where the shooting took place, and saw and talked with appellant directly after same; and no effort was made to prove, by any of them, temporary insanity on his part. Substantially the same facts as expected from Williams were given in testimony by one-Warren, who was named in the application for continuance, but appeared and testified. Based on the testimony of Warren, a hypothetical case was submitted to a phy-sieian called on behalf of appellant, but he declined to say that upon such facts he believed appellant insane. We do not think ourselves justified in applying the principle involved in Horhouse v. State (Tex. Cr. App.) 50 S. W. 361; Hill v. State (Tex. Cr. App.) 53 S. W. 845; and Walker v. State, 86 Tex. Cr. R. 441, 216 S. W. 1085, to the extent of reversing this ease. There was no diligence in the instant case and no newly discovered evidence. The proposition that Williams would give such testimony was not supported by his affidavit, nor that of any other person, save appellant, in swearing to his motion for new trial, and, as stated, then only upon information and belief.

Appellant also seriously insists that it was error to allow the testimony of the city marshal to exculpatory statements made by appellant shortly after the shooting. We have carefully examined the bills of exception and the authorities presented supporting the proposition. This court’s presumption is always in favor of the correctness of the ruling of the trial court, until the contrary is made to appear. By argument and calling attention to statements made by other witnesses, the appellant attempts to reach the conclusion that the city marshal must have reached the scene of the killing something like half an hour-after same took place. No one was asked to state, or attempt to state, the length of time. The parties to the killing were.in the room where the shooting took place when the marshal reached the scene. Appellant still had in his hand the pistol with which he had taken the life of his wife. There is no attempt to show that he was cool or calm, or that the statement was not in every way brought within the rule of res gestse. He told the officer that his wife had shot herself. The objection to testimony ás to this statement was upon the ground that he was not warned, and because same was immaterial and irrelevant. We have carefully searched the record to ascertain if there be anything in it which would sustain the proposition that the statement made was not a part of the res gestae, and have been unable tp find it; nor do we believe it immaterial.

We have not been led to conclude ourselves in error in our former opinion, in holding that there was no evidence calling for a submission of the theories of an accidental shooting, or a shooting under such circumstances as to make it negligent homicide. While not material to a decision on this motion, our attention is called to the fact that' the learned trial judge declined to approve the bills of exception taken to the refusal of special charges asked. The notation made by him upon said bills of exception is that it is not necessary, under the law, to take a bill of exceptions to the refusal of a special charge. The matter, was discussed at some length by us in Hinder v. State, 94 Tex. Cr. R. 322, 250 S. W. 703, where we held contrary to such view.

Believing the case was properly decided, the motion for rehearing will be overruled. 
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