
    YOUNG v. STATE.
    (No. 6360.
    (Court of Criminal Appeals of Texas.
    Oct. 26, 1921.
    Rehearing Denied April 26, 1922.)
    1. Criminal law &wkey;>970(ll) — In trial for murder, variance in name of deceased not reached by motion in arrest.
    In a prosecution for murder, a variance between the allegation and the proof of the name of the deceased cannot be reached by Vernon’s Ann. Code Cr. Proc. 1916, art. 849, granting a motion in arrest of judgment for a substantial defect.
    2. Jury <&wkey;>)3l(8) — State entitled to question veniremen concerning scruples against death penalty.
    Where the evidence is circumstantial in a capital case, the state has a right to ask each venireman if he has any conscientious scruples against inflicting a death penalty.
    3. Jury &wkey;>83(3) — Deputy sheriff serving process held not subject to challenge for cause as venireman.
    It was not a ground for a challenge for cause under Vernon’s Ann. Code Cr. Proc. 1916, art. 692, that a venireman in a capital case had been a deputy sheriff and had served a process in the case.
    4. Criminal law &wkey;>681 (I) — Letters admitted in evidence before proof of handwriting.
    It was proper to admit in evidence certain letters upon the promise to show that they were in defendant’s handwriting, where later evidence to that effect was introduced.
    5. Criminal law &wkey;>665(2) — Permitting sheriff in courtroom while other witnesses testifying not abuse of discretion.
    Excusing the sheriff from the rule and permitting him to remain in the courtroom while' the other witnesses were testifying was not abuse of the trial court’s discretion.
    6. Criminal law t&wkey;66l — Party introducing part of statement not required to introduce all.
    Vernon’s Ann. Code • Cr. Proc. 1916, art. 811,' providing that where a part of a statement is introduced the whole is admissible by the opposite party, does cot require the party introducing such part to introduce the whole statement.
    7. Criminal law &wkey;>858(3)— Jury on retiring held entitled to documents in evidence.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 751, the jury may take with them on retiring documents and letters in evidence.
    
      8. Criminal law &wkey;>784(4) — Where instructions on circumstantial evidence given, unnecessary to tell jury it was such a case.
    Where the jury were charged on circumstantial evidence, it was unnecessary to expressly tell them that the case was one ot circumstantial evidence.
    8. Criminal law <&wkey;656(3) — Court’s remark in striking out evidence held not error.
    In striking out evidence, the court’s remark that it did not amount to anything was not error.
    10. Criminal law <&wkey;478(2) — Witnesses accustomed to pass on signatures may be handwriting experts, although they think otherwise.
    Witnesses who had been cashiers and bank officers, and had worked in tax collectors’ offices and other places where they were called on each day to pass on signatures, may be held experts regardless of whether they think they are or not.
    11. Criminal law <&wkey;>49l (I) — Expert’s opinion on comparison of writing admissible.
    An expert on handwriting may give his opinion based on a comparison of _the writings.
    12. Criminal law <&wkey;ll70,/2(5) — No harm shown by refusal to allow cross-examination where examination permitted.
    The objection that defendant voluntarily postponed cross-examination of a witness and later had to make the witness his own before examining her was of no avail, where it was not shown that an examination in a different manner would have aided him.
    13. Criminal law <&wkey;680(l)— Order of admitting testimony disregarded if it deprives party of material evidence.
    Where the order of introducing testimony deprives either side of material evidence, it should not be adhered to.
    14. Criminal law &wkey;>I 119(2) — Exceptions must show why evidence not proper rebuttal.
    Where the exceptions recite no fact by which it can be determined whether certain evidence was a proper rebuttal, a contention that it was not will not be considered.
    15. Criminal law <&wkey;723(2) — State’s argument to jury in a murder case held not ground for censure.
    Where there was evidence that defendant had debauched and then killed his sister-in-law, the state’s attorney’s remark that any jury would acquit a man for killing one so wronging a member of his family was not a ground for censure.
    16. Criminal law <©=► 1091 (4) — Necessary for exception to evidence to show incorrectness of ruling.
    Where an objection to the admission of evidence is made, sufficient facts must appear in the exceptions to enable, the appellate court to determine the correctness of the ruling.
    17. Witnesses &wkey;>347 — Cross-examination concerning previous conduct held proper.
    Where appellant’s wife denied the ownership of certain shoes, it was proper on cross-examination to ask her if she did not cry when previously questioned concerning them.
    18. Criminal law <&wkey; 1127 — Necessary for general bill of exception to state facts showing error.
    Where a general bill of exceptions was taken to the court’s qualifications to defendant’s other' bill of exception, and no facts showing error of the qualifications are stated or referred to, the court on appeal cannot say that such qualifications were not proper.
    19. Homicide <&wkey;>250 — Evidence held sufficient for conviction.
    The state’s chain of circumstantial evidence held sufficient to support a conviction of murder.
    20. Criminal law &wkey;>l 144(13) —Sufficiency of evidence to support judgment decided upon state’s case.
    On appeal from a conviction of murder, the sufficiency of the evidence to support the judgment is usually decided upon the case as made by the state.
    On Motion for Rehearing.
    21. Homicide <&wkey;>142(5) — Where evidence showed deceased was called by two different names, no merit to objection of variance in name.
    Where, in a prosecution for murder, witnesses called deceased by the name used in the indictment and also by a slightly different name, an objection that there was a variance in name between the allegation and the proof was without merit.
    22. Criminal law <&wkey;l043(2) — Question of privileged communication not raised by objection that evidencei was improper.
    An objection to the admission of a letter on the ground that it was “improper, irrelevant, and immaterial” is not sufficient to present the question on appeal that it was a privileged communication.
    23. Criminal law <&wkey;>l09l(4) — Bill of exception must show direct point at issue.
    In an indictment for murder, a bill of exception to the refusal to strike certain letters from the record, not setting out which party put the letters in evidence and what was the point at issue, was not sufficiently definite.
    24. Criminal law <&wkey;l09l((3) — Bill of exceptions omitting letters objected to held incomplete.
    A bill of exceptions to the admission in evidence of certain letters which omitted the letters was incomplete.
    25. Criminal law <&wkey;>35l(f), 406(2), 407(1)— Evidence of what defendant did or said, or failed to do or say, while in jaii, inadmissible where no warning.
    Where no warning was given, evidence of what defendant does or says, or fails to do or say, while in jail, is not admissible.
    26. Criminal law <@=»l 111 (3) — On appeal, court is bound by bill of exceptions.
    On appeal, the court is bound by what is shown in the bill of exceptions, which cannot be supplemented by the briefs.
    
      Appeal from' District Court, Liberty County; J. L. Manry, Judge.
    Floyd Young was convicted of murder, and be appeals.
    Affirmed.
    C. W. Nugent, of Galveston, and F. M. Stevens, of Liberty, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Appellant was convicted of murder in tbe district court of Liberty county, and his punishment fixed at confinement in tbe penitentiary for life.

In disposing of tbe various contentions made by appellant, we will not attempt to set same out at length, but will discuss tbe principle involved in each of said contentions, and give our conclusion regarding same.

The question of variance between the name of deceased as alleged, and as same appears in the proof, cannot be of avail when raised in motion in arrest of judgment'. Such motion only reaches errors of substance in the indictment or information. Article 849, Vernon’s Crim. Proc.

The state in questioning veniremen in a capital ease dependent on circumstantial evidence has the right to ask each man if he has conscientious scruples against the infliction of death as punishment in such ease. Borders v. State, 72 Tex. Cr. R. 135, 161 S. W. 483.

That a venireman in a capital case had been a deputy sheriff and had served some process in said case is not ipso facto ground for challenge for cause, he being otherwise qualified. Article 692, Vernon’s Crim. Proc.

Letters offered by the state were objected to because not signed, and not shown to be in the handwriting of appellant. The bill of exceptions shows same to have been admitted upon promise of state’s counsel to show that same were in appellant’s handwriting, and said bill is approved with the statement of the trial court that abundant proof was offered by the state upon said issue. The bill shows no error.

Excusing the sheriff from the rule, and permitting him to remain in the courtroom while other witnesses were testifying, would be a matter largely within the discretion of the trial court. Appellant’s bill of exceptions No. 6 shows no abuse of such discretion.

While it is statutory (article 811, Vernon’s Crim. Proc.) that, when part of a statement is introduced in evidence, the whole of such statement on the same subject becomes admissible by the opposite party, it is not necessary that the party introducing such part of a given statement shall introduce all of it. The adversary tnay do so if he desires. Davis v. State (Tex. Cr. App.) 209 S. W. 751.

Letters and documents in evidence may be taken by the jury in their retirement. Article 751, Vernon’s C. C. P., and authorities cited. .

The court charged on circumstantial evidence. When this is done, it is not necessary that the jur^y be expressly told that this is a case of circumstantial evidence. Henderson v. State, 50 Tex. Cr. R. 268, 96 S. W. 37; Pennington v. State (Tex. Cr. App.) 48 S. W. 507.

Appellant asked that a remark of a witness be stricken from the record. The trial court said:

‘T will strike it from the record, but it don’t amount to anything. Gentlemen, you will not consider it.”

A reference by the court to that which is excluded at the request of the accused—to the effect that it is of no weight—is not error capable of injuring appellant. Irvin v. State, 67 Tex. Cr. R. 108, 148 S. W. 589; Yates v. State, 68 Tex. Cr. R. 437, 152 S. W. 1064; McGee v. State, 37 Tex. Cr. R. 668, 40 S. W. 967; Newman v. State (Tex. Cr. App.) 64 S. W. 259.

Witnesses at the time of trial and for many years past who had been cashiers and officers of banks and had worked in tax collectors’ offices and other places, where they had been called on to pass on many signatures and letters each day, may be held experts by the court, regardless of whether they think themselves such or not, and may be used to testify to handwriting by comparison. Crow v. State, 33 Tex. Cr. R. 264, 26 S. W. 209.

Incriminating letters in evidence were claimed by the state to be in appellant’s handwriting. Numerous witnesses, testified to the fact that they were in his handwriting. A witness testified that while appellant was in jail he got a fellow prisoner to do all his writing for him. Appellant moved to strike out such evidence after same had been given. . The accused may not ordinarily wait till a question is answered and then make such motion, but we think the evidence was admissible; it being shown that appellant could write, and prior to his arrest had frequently written.

Appellant’s bill of exceptions No. 31 complains that appellant was deprived of the right to cross-examine Mrs. George Snook, a state witness. It appears that, when this witness concluded her direct evidence, appellant volunteered the statement that the witness was in such physical condition as that he did not care - to cross-examine her, and that he reserved the right to call her back later and cross-examine her. The court said, “Ail right.” The state introduced some 20 other witnesses and rested its case. After several defense witnesses had testified and while the wife of appellant was on the stand, there arose a dispute as to certain testimony oí Mrs. George Snook, about which appellant’s wife was asked, and it was stated that such testimony would not be admissible except a predicate be laid, and thereupon appellant’s counsel stood Mrs. Young, the appellant’s wife, aside and had Mrs. Snook recalled. After asking her several questions, objection was made to the form of a question, and appellant then claimed the right to cross-examine said witness, basing such right upon the fact that, when said witness left the stand as above stated, he reserved the right to call her back and cross-examine her. The court intimated that in his opinion counsel had no right to call said witness at that stage of the ease and cross-examine her, whereupon appellant reserved a bill of exceptions to the statement of the court, and then, stating that he did not waive any of his rights based on said bill of exceptions, appellant stated he would examine said witness as a witness for defendant, and proceeded to ask her a number of questions, all of which she answered, and at the conclusion of such examination appellant stood her aside and recalled Mrs. Young, his wife, and proceeded with her ex amination. There is nothing in the bill of exceptions or the record which shows that any question was asked of Mrs. Snook, when placed on the stand by appellant, which she was not allowed or required to answer; nor is it disclosed there was any evidence on her part which appellant was not allowed to bring out. Nor is it intimated in the bill of exceptions that, if permitted to further examine said witness, or to examine her in a different manner, she would have in any wise aided appellant’s cause or weakened that of the state. We are of opinion that as nothing was said when this witness was first-excused, as to when her cross-examination was to be had, and apparently no attention of appellant was called, before beginning the introduction of his evidence, to the fact that he had failed to cross-examine said witness, it would have' been erroneous to refuse to permit him to examine her. We do not think the order of the introduction of testimony of sufficient importance to adhere thereto when such course would deprive either side of material evidence. McCue v. State, 75 Tex. Cr. R. 137, 170 S. W. 280, Ann. Cas. 19180, 674. The complaint of appellant under discussion, however, will be held of no avail because he wholly fails to show that he has been injured or deprived of any testimony which would have been material, or that he wished to ask some question which was not allowed.

Tobe Butler was allowed to testify, in the state’s rebuttal evidence, that he threw a double-barreled shotgun in a certain dipping vat to keep Joe Worsham from shooting him. The bill of exceptions setting out the objection to this recites no fact by which this court may determine how or in what way said evidence was not in' rebuttal, and therefore no error is presented.

The state’s attorney used the following language in his argument to the jury:

“There is no middle ground in this matter. You should hang Floyd Young. You should inflict the extreme penalty. He will have time to pray. He will have time to wind up his affairs. He will have time to select and buy his coffin.
“Of course, I would be sorry for the defendant’s little children; but, if I were in their place, I would not want a daddy whose fingers were dripping with the life blood of the sister of my mother.
“A man who would commit such a crime ought to be killed, and a man who would kill a man for so wronging a .member of his family ought to be and would be acquitted by any jury in this state.”

Upon objection by appellant, the court orally instructed the jury not to consider said remarks. No written request or special charge relative to the matter is in the record. We do not think the language so far removed from the realm of legitimate appeal as to merit a reversal under these circumstances. The deceased, a young girl, and sister-in-law of appellant, was killed while sitting in her own room by some one shooting from the outside in the nighttime. The grl had been previously debauched, and had given birth to an illegitimate child while an inmate of appellant’s home, responsibility for which fact the state laid at the door of appellant. Letters seeking further intimacy and threatening the death of deceased were found in her trunk after bet-death and testified to as being in appellant’s handwriting. Many other circumstances, some of which will be mentioned later, appear in the record. We can find no ground for censure in such ease of a state’s attorney whose appeal for a death sentence was in no stronger terms than those set out.

There is nothing in appellant’s bill of exceptions No. 37, which shows that the evidence objected to was not pertinent. Tt is not enough to say that the fact in evidence was too remote and may have had a bearing not in accord with the state’s contention. Sufficient facts must appear in the bill of exceptions to enable this court to determine the correctness of the objection made.

Appellant’s bill of exceptions No. 38 also complains of language used by the state’s attorney in his closing argument. The court orally instructed the jury not to consider this, but no written request or special charge to that effect was asked. We do not believe it so injurious as to merit a reversal.

On direct examination appellant’s wife was asked about a certain pair of old shoes which formed a link in the state’s chain of circumstantial evidence, and also about a conversation had with her by the sheriff about said shoes, in which it appears that she denied the shoes being hers. It was not error to allow the state on cross-examination of this witness to ask her if it was not true that, when the sheriff and her father presented those shoes to her and asked er if they were not hers, she did not break down and cry.

There are other bills of exception, all of which we have examined, but none of which present any error, and a ruling on which would elucidate no new proposition.

There appears at the end of the record a general bill of exceptions taken by appellant to the various qualifications to his other- bills of exception. No facts are stated or referred to which would show the error of the qualifications affixed by the trial court to said bills, and in such condition of the record we are unable to say that said qualifications were not fair and proper.

Appellant in his motion for new trial and in other ways raised the question of the sufficiency of the evidence to support the Judgment. This is a question which in most cases is decided from an examination of the state’s case as made before the Jury. Discussing same, it appears that, when deceased was a' girl 15 years of age, she began living in appellant’s home; that, after she had been there some months, appellant went to a doctor and wanted from him mediciné “to bring a woman around,” which was refused; that some months later deceased gave birth to a child; that appellant paid the expenses incident to her illness, and in company with his wife and another relative carried the child to a home for foundling children in Houston, paying the expenses of that trip, and also for the care of the child; that, as soon as deceased was able to be removed after the birth of said child, she was taken to her father’s home and forbidden to further associate with appellant; that her mother accused appellant of being the author of the young girl’s ruin, and he made no denial; that in August, September, and October previous to the killing of deceased on October 22d, she received four letters couched in terms of extreme affection entreating her to meet the writer at various places and threatening her with death if she did not do so; these letters were testified to by a number of people as being in appellant’s handwriting; the last of said letters recited the fact that deceased had paid no attention to the others, and that if she did not pay attention to this one it would not be long until she would be killed; within the week preceding the homicide appellant bought a single-barrel, second-hand, breech-loading shotgun; a day or two before the killing, he bought two buckshot shells of a kind known as “Peters Referee”; deceased was shot in the head with buckshot on the night of October 22, 1918, killing her instantly, the shot' being fired from outside her father’s house; tracks were found that night, and further examined the next morning, leading from a pond near by the house of deceased’s father to a point near the house, the person making them seeming to go an ordinary gait, and then leading from said house back to said pond, the wearer seeming to be running; said tracks had pecularities about them which were detailed; a careful search of said pond brought to light a pair of shoes giving evidence of having been cut, as though hastily cut off a foot, which fitted said tracks and which were identified as being a pair of old shoes belonging to appellant’s wife, but which were large enough for him to wear; on the opposite side of said pond from the home of deceased’s father, tracks and trampled ground, as though made by a horse being hitched, were found, and emerging from the pond and going to the horse’s tracks was also found a human track made by a different shoe than the ones above described; the horse tracks were traced to an pld road where the animal apparently began to gallop, and was tracked on from there to appellant’s lot; hanging in his barn and around his premises were found a saddle with wet stirrup leathers and a wet girth, and a pair of appellant’s trousers wet below the knees, and on a table were found several buckshot shells, one of a different kind and color from the others; the parties tracing the horse tracks took careful measurement of them and the next day compared them with one of appellant’s horses, and found them to correspond exactly; in a deep pond, through th“ edge of which ran the road on which the horse tracks were found leading to appellant’s house, was later found the single-barrel, breech-loading shotgun purchased by appellant Just before the homicide and which he had claimed to have sold to a negro; when found, said gun had an exploded shell in it which upon examination was found to be a Peters Referee. If the evidence thus stated fails in any point to make out a complete chain of circumstantial evidence from which there is no escape, we confess ourselves unable to Judge of a case thus made out. We regret being unable to' agree with able counsel for appellant in his conclusion about the same. We have gone through this record with much care, because of the severity of the penalty imposed upon this appellant, but are unable to conclude that he ,has been denied any right or privilege accorded him under the law or our Constitution, and we are'of opinion that his defense has been presented, and that the evidence contained in the record warrants and supports the verdict against him.

The Judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In Ms motion for rehearing, appellant urges that we were in error in holding that the alleged variance in name between that of deceased as alleged in the indictment and as the same appears in the proof could not be raised in motion in arrest of judgment. We do not find this question raised in any other manner in the record. There appears to have been no objection interposed to proof that deceased’s name was Bertha Snooks and no special charge requested incident to such alleged variance. We find upon the bill of exception complaining at the overruling of the motion in arrest of judgment the following notation by the trial judge:

“The name of the deceased was used both ways all through the trial and no objection reserved by defendant.”

In looking to the statement of facts we find that the witnesses referred to the surname of deceased as both “Snook” and “Snooks,” and that a brother of deceased gave his name as “Snooks.” This examination of the statement of facts, together with the explanation of the trial judge on the bill of exceptions, leads us to believe that there is no merit in the contention urged by appellant, and that the record sufficiently shows that the deceased was known both as Bertha Snook and Bertha Snooks.

Appellant complains that a certain letter designated as letter No. 5 was inadmissible even for the purpose of comparison of handwriting, as it was a privileged communication written by appellant to his wife, Mrs. Minnie Young. We have been unable, after a diligent search through the record, to find where any objection was reserved relative to such letter on that account. Appellant’s bill of exception No. 4, appearing on page 58 of the transcript, apparently reserves exception to the introduction of letters Nos. 1, 2, 3, 4, and 5; but tire bill sets out only letters 1, 2, 3, and 4, and the bill appears to complain because the four letters were admitted in evidence -without sufficient proof that they were in the handwriting* of appellant. No mention is made whatever in such bill of letter No. 5, except in the beginning thereof. In bill of exception No. 7 it appears that defendant objected to the introduction of letter No. 5, but the only ground stated is that it was “improper, irrelevant, and immaterial testimony, and not the proper manner in which to prove handwriting.” If there is any other reference in the record to letter designated as No. 5 or any further objection urged to the admission thereof, we have not discovered it, and the ones mentioned are not sufficient to present the question urged by appellant in his motion for rehearing.

Appellant in his original brief and also in his motion for rehearing complains because the court permitted one C. W.’ Carlisle to testify relative to certain letters which are asserted in the brief and motion to have, been written by one Blackie Lewis for appellant while the latter was confined in jail. The bill relative to the matter and the only one with reference to it is in its entirety as follows:

“Be it remembered that upon the trial of the above entitled and numbered cause, the court overruled the motion of the defendant to strike from the record and to instruct the jury not to consider any testimony with reference to what Floyd Young, the defendant, claimed he had done while he was under arrest, in jail, and in the custody of the sheriff, especially with reference to letters which witness C. C. Carlyle testified had been written for the defendant by one Blackie Lewis, a cell mate of the defendant while he was in jail, because the testimony as to the writing of such letters was hearsay, had not been properly identified, and were written, if written at all, or caused to be written, while the defendant was a prisoner in jail and under duress, and because the writing of same, if same were written, was immaterial, irrelevant, and not admissible for any purpose.”

It is not claimed by the bill that any letters written by Blackie Lewis for appellant while in jail were introduced in evidence; if so, the bill is incomplete for omitting the letters. As we analyze the bill, appellant was seeking to have the jury directed not to consider testimony “with reference to what appellant claimed he had done while under arrest with reference to letters which Carlyle testified had been written for appellant by Blackie Lewis.” The bill makes it appear that appellant was making some claim relative to these letters. It is not sufficiently specific to apprise us of the direct point at issue. If appellant was making some claim about the letters, he may have opened up a subject which it was entirely proper for the state to pursue.- The bill fails to inform us whether the information from the witness Carlyle was elicited by the state or appellant. What an accused does or says or omits to do or say while in jail, without warning, if of a criminative character ordinarily cannot be shown by the state. Brent v. State, 89 Tex. Cr. R. 544, 232 S. W. 845; Gardner v. State (Tex. Cr. App.) 34 S. W. 945. See many other cases collated under section 64, pp. 38, 39, Branch’s Anno. TP. C. It was not our intention by any expression used in our original opinion to change or modify the rule. We were perhaps un-. happy in our choice of words, and, instead of saying “we think the evidence was admissible,” it would have been more appropriate to say that it was not shown by the bill in question that the matter was inadmissible. We are bound by what is shown in the bill of exception, and the same cannot be supple-merited Jay the briefs to add to or take from it.

Believing our former opinion properly disposed of the case by an affirmance, the mo•tion for rehearing is overruled. 
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