
    JORDAN v. STATE.
    (No. 10841.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    Rehearing Denied June 8, 1927.
    1. Homicide <&wkey; 101 — Husband killing wife may not defend on ground of discovering her in adultery (Pen. Code 1925, art. 1220).
    Under Pen. Code 1925, art. 1220, relating to justifiable homicide, husband killing wife may not defend on ground of discovering her in adultery.
    On Motion for Rehearing.
    .2. Criminal law <&wkey;l 144(12) — In absence of properly authenticated bill of exception, appellate court cannot assume evidence went before jury over defendant’s objection regardless of court’s withdrawing testimony or complaint in motion for new trial (Code Cr. Proo. 1925, art. 667).
    Under Code Cr. Proc. 1925, art. 667, in' ab-sence of bill of exception properly authenticated by trial judge, appellate court cannot assume that any evidence went before jury over ■defendant’s objection, regardless of fact of complaint in motion for new trial or that court •withdrew certain testimony.
    .Commissioners’ Decision.
    ' Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
    Prank Jordan was convicted of manslaughter, and he appeals.
    Affirmed.
    Rowell & Rowell, of Jefferson, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of manslaughter, and his punishment assessed at five years in the penitentiary.

The record discloses that the appellant was indicted for the offense of murdering his wife, Alice Jordan, by shooting her with a gun. It was the contention of the state that the homicide was murder. The appellant defended upon the ground that he had suspected his wife of being unduly intimate with one Charlie Carter; that on the night of the homicide he pretended to leave home, but returned shortly thereafter and discovered ■ his wife .and Carter engaged in an act of carnal inter-course; that he got his gun for the purpose of killing Carter, but that his wife ran in and grabbed the gun and was accidentally killed in the scuffle which ensued.

The record is without bills of exception, and the only complaint urged by appellant is to the refusal of the court to instruct the jury that if appellant detected his wife and Charlie Carter in an act of sexual intercourse, he would have the lawful right to kill either his-wife or Carter, or both of them. This contention is based upon article 1220, P. C. 1925, which states, “Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place be fore the parties to the act have separated,” etc., and upon the former decisions of this court construing said statute, to the effect that the husband would be justified in killing the wife under such circumstances. See Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583; and Cook v. State, 78 Tex. Cr. R. 116, 180 S. W. 254. However, this court, in the cases of Billings v. State, 102 Tex. Cr. R. 338, 277 S. W. 687, and Jimenez v. State, 103 Tex. Cr. R. 163, 280 S. W. 829, overruled the construction placed upon this statute in the Williams and Cook Cases, supra, and held that the Legislature did not, in passing said statute, make the killing of the wife justifiable when she was detected by the husband in an act of illicit intercourse with another, and that the husband, under such circumstances, would only be justified in killing the wife’s paramour. The trial court, having followed the rule announced by this court in the Billings and Jimenez Cases, supra, committed no error in refusing to give the requested charge.

There being no error in the record, the judgment of the trial court is affirmed.

PER CURIAM. 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.

On Motion for Rehearing.

HAWKINS, J.

Appellant states in his motion that the trial court over objection permitted the state to prove by two witnesses that appellant made certain damaging statements at the inquest proceedings at a time when he was under arrest and unwarned. This complaint is not verified by any bill of exception. However, it is insisted that because the record shows that the court by a supplemental charge withdrew such testimony from the jury this court should consider the matter even in the absence of a bill of exception. In the absence of a bill properly authenticated by the trial judge, we cannot assume that any evidence went before the jury over appellant’s objection. The fact that such complaint was set up in the motion for new trial, or tliat the court withdrew certain testimony, will not take the place of a bill. The necessity for complaint to he perpetuated by a bill of exception seems to be contemplated by article 667, C. C. P. 1925. Many authorities will be found collated in the notes under said article in Vernon’s C. C. P. vol. 2, 1925.

The motion for rehearing is overruled. 
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