
    SHELL v. STATE.
    (No. 6821.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law <@^o5I9(9) — That confession is in response to questions does not vitiate it.
    The mere fact that a confession is made in response to questions does not vitiate it.
    2. Criminal law <©=>396(2) — Correspondence must be between parties involved to be. admissible on theory that part is already in evidence.
    In a prosecution for murdering defendant’s stepdaughter, a letter written by the latter to her husband was not within Code Cr. Proc. 1911, art. 811, providing that, where a part of the correspondence is put in evidence, all other letters between the same parties are admissible, not being a correspondence between the parties involved.
    3. Homicide <©=> 166(1) — Letter written by deceased and seen by defendant, admissible to show motive.
    In a prosecution for the murder of defendant’s stepdaughter, a portion of a letter written by deceased and seen by the defendant shortly before the killing, in which deceased stated that she was going to leave home and not subject herself to any more of defendant’s indecent proposals, was admissible to show motive.
    4. Criminal law <@=ml 170(1) — Exclusion of letter which would arouse sympathy of jury for deceased held harmless.
    In a prosecution for murder, an exclusion of a portion of a letter which would arouse the sympathy of the jury for the deceased and did not contradict the portion put in evidence by the state was harmless.
    5. Criminal law <@=»l 144(18) — Overruling of motion for new trial on grounds of Insanity assumed proper where evidence not before appellate court.
    After a conviction of murder, the overruling of a motion for new trial on the grounds that defendant was insane at the time he confessed will be assumed on appeal to be proper where it did not appear what evidence of insanity was before the trial court.
    Appeal from District Court, Sabine County; Y. H. 'Stark, Judge.
    J. D. Shell was convicted of murder, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant is under conviction for the murder of his stepdaughter; the jury having assessed his penalty at death.

The facts reveal that deceased was a young woman about 23 or 24 years of age whose mother appellant had married at a time when deceased was quite a small child. As she grew into young womanhood, and about 7- or 8 years before the killing, appellant seems to have become infatuated with her, or at least possessed of an unholy desire to have improper relation with" her, and had continually importuned her to this effect. She had persistently refused his advances, and finally married one Simmons. Appellant encouraged this marriage with the idea that, if married, she would then consent to his (appellant’s) sexual embraces. He was disappointed in this expectation. After deceased and her husband lived together for a time, they separated, and deceased came back'to the home of appellant and her mother to live. His advances were renewed, and met with the same rebuff as formerly. The killing occurred about daylight. On the day and night preceding he had again made improper proposals to deceased, and had been told by her that she intended to leave the house. She had written a letter to her husband in which she stated that she was going to leave home the next day, and that her father “was leading her a dog's life.” Appellant saw her writing, and the first two pages of the letter (being that part containing the expression above referred to) were taken by' appellant from the suit case of deceased. On the morning of the killing about daylight appellant went to the bed where deceased was sleeping with her mother, and with a razor cut her throat from ear to ear, severing the jugular vein. He then attempted to take his own life by cutting his own throat with the same instrument. It is not necessary to set out in detail the evidence. Many of the facts related appear from appellant’s confession introduced against him. The details are harrowing and disclose, one of those unfortunate and inexplainable conditions which sometimes arise.

Appellant complains in his bill of exception No. 2 because the court admittéd a confession made by him, urging as his objections that the same was in question and answer form, and showed upon its face that it was not a voluntary statement or confession as contemplated by the law. The bill does not set out the confession, and we might dismiss the subject upon the insufficiency of the bill, but because the extreme penalty of the law was inflicted we have gone to the statement of facts and examined the confession as it there appears. It consists of four entire pages single-spaced typewritten matter. In the confession are some questions, but only where it was apparently necessary for the attorney taking the same to make the interrogation in order to make plain to whom appellant was referring, or to clear up some involved statement. The mere fact that a confession «is made in reply to questions does not vitiate it. Section 67, p. ■ 42, Branch’s Ann. P. 0. But that objection does not apply to the confession in the instant case. It relates the circumstances leading up to the killing and incident thereto, and appears to us to be the statement of appellant telling in his own way the facts as best he could. There is nothing to indicate that the confession was not voluntary. Instead of being subject to the criticism directed at it, we desire to commend it as being nearer in line with what we conceive a confession ought to be than those we generally are called upon to review. It is apparent from its face that the district attorney (Mr. K. W. Stephenson) was not in the least undertaking to impose upon or take an unfair advantage of appellant. The confession, instead of being couched in the verbiage of the taker, as is too frequently the case, shows that the language is that of appellant himself, even as to grammatical construction and disconnected and confused statements.

Appellant’s son, a young man about 18 years of age, testified that the killing occurred about daylight, that the confusion following awakened him, and that within a few minutes after the killing he talked to his father, who was telling him (witness) what the devil could do for people, and to always fear the devil and women, and that appellant told him (witness) “she was going to have me killed, and here is a letter,” and handed to witness one sheet of a letter. This was identified by the witness and offered in evidence by the state. It was a sheet of letter paper written on both sides, the pages being numbered 1 and 2, and was as follows:

“Mr. W. E. Simmons — Dear Darling: I will rite you a few lines to let you know-yet living but that is all I don’t think will live long I dont think you are doing me rite Sweetheart you wont send me in of cothes Sweetheart how can you have the hart to keep ever thing pore little girl hais got well darling you dont know what a time that I am having darling I havnt got now home or master poir little girl havnt got now none to cair inthing for me I am going to leve to mair in may to go am on the mersy of the world papa is tring to lead me a dog life. I can stay at home in more So I gess I will go to the dogs right But I am going to hold on as long as I can The way look dime somtime and pore little girl — .”

The confession of appellant discloses that after he made an improper advance to deceased upon the day before the killing she ■wrote a letter; that later on he searched through her suit case and got that portion of the letter which he afterwards turned over to his son. In his confession he refers to that statement in the letter where the deceased said “papa is tring to lead me a dog life.” After the killing a witness searched the suit case and found what is contended by appellant to be the other portion of the letter, consisting of pages 3, 4, 5, 6, 7, and 8. Appellant offered in evidence that portion of the letter found in deceased’s suit Cfcse,' and which is as follows:

“Wont send me my cloth that I work so hard for purr little girl sweetheart cant you have the hart to love me • that much wine I aint able to work for in mor you said that you wold help me as long as I wont mairy but darling you told me that you wood send me my trunk and you dident say in thing about it and havint never have said in thing about them a told darling I gess you have got your cair and having a good time but sweetheart I am having a hard time I cry all the time it is all I can do to ceep from killing myself some time you have done me so bad and I sure have done you baid but darling I am weping yet to and yet sure does hurt me but darling am going hold may carterek to as long as I can Pa is going to put me to picking cotton and gess I will die hut no won wood cair if in thing they wood be gld of it sweetheart if you will send me may things get that old man that come an got them and I will pay him may self if I can hair the muney until I can work’it out and I will be glad of it if U will send them I am going to take them whar I work at pure little girl haf to leave home and hant got nou wone to cair in thing for pure little of in firl may God and may lord win yay time come to die darling I have rote and rote and got three letters from you and non of them said that you wood bee her the first of August and won was that you got hurt and if you ar going to let me have may things let me know and if you not I am going after them and see you if you are thir I will see you to darling I haint afraid of in thing I dont cair for in thing I had rather bee did and living in how I am come after them for you know that they are mine and know won wont to se.e sweetheart you will se me some woñe look baid I am poir then I ever wase bee and gess hell is my dum but if it is your will you will know who sent me to hell O may God if.you dont see me in more for God sakes dont do, the next woman like you did me and I am crying and ring my poir little hands for the way that I did you darling but I know we wood not get alog in mor thay wood bee in use in tring for you said that you dident want me with arece mine this is my last letter that hant use I will send you a kiss for it may be the last.”

Objection by the state to this portion of the letter was sustained. The objections are not set out in the bill, but the trial judge qualified it by stating, in substance, that there was no testimony offered showing that pages 3, 4, 5, 6, 7, and 8 were a part of the same letter as pages 1 and 2 offered by the state; that the testimony failed to establish in the mind of the court that the pages offered by appellant were written by deceased, and also failed to show that appellant had ever had pages 3, 4, 5, 6, 7, and 8 in his possession or had ever seen them or had any knowledge of their existence; further the court concluded that the contents thereof would likely inflame the minds of the jurors against appellant. We assume that appellant was seeking to introduce the portion of the letter found in the suit ease under the provisions of article 8X1, O. C. P., which reads:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

The evidence was uncertain and' unsatisfactory as to whether that portion of the letter found in the suit case was in the handwriting of deceased, but we are inclined to the view that taking the pages so found in connection with the ones in possession of appellant they were sufficiently identified as being written by her as not to have been excluded on that ground if they were otherwise admissible.

The letter in question was not written to appellant, but was written to deceased’s husband, from whom she was separated at the time, and therefore does not come within the rule of a correspondence or part of a correspondence between the parties involved. There is no evidence in the record which would lead us to the conclusion that appellant ever saw or read any part of the letter except that portion taken by him out of the suit case and delivered to his son after the killing. The general rule appears to be that, where a letter or portion of a written instrument is introduced by one side as original evidence, all of the same on the same subject can be introduced by the other side. 7 Encyclopedia of Evidence, pp. 92-128; Corpus v. State, 51 Tex. Cr. R. 315, 102 S. W. 1152. The general rule is based upon the proposition that the parties themselves are familiar with the writing or correspondence in question, and their actions are to be viewed in the light of the entire writing or correspondence, and not a part only.

The evidence discloses that deceased had communicated to appellant her final determination to leave home and subject herself to no further indecent proposals from him, and that portion of the letter offered in evidence by the state was admissible to show motive and the state of appellant’s mind at the time of the killing in view of a confirmation by it of what she had told him. That ■jortion of the letter which he never saw and' never had in his possession could no -more have affected his actions than a conversation which he never heard.

If the trial court was in error in not admitting that portion of the letter offered by appellant, then it becomes our duty to consider whether any possible harm could have resulted to appellant from its exclusion. That portion of the letter excluded was an appeal by deceased to her husband to return some of her things which were in his possession, and lamenting that he had not come to see her. It is apparent from its face that it was an effort to get him to take her back. It throws no light upon that portion of the letter offered by the state. As may be seen from an inspection of that part of the letter excluded, it could only have served the purpose of arousing the sympathy of the jury for deceased. It in no way contradicted or lessened the effect of the portion offered by the state. We are constrained' to hold that nothing in it could have in any way aided appellant, and therefore its exclusion could have done him no possible harm.

In his motion for new trial appellant avers that he was of unsound mind and irresponsible for his acts and statements and was mentally incapable of understanding or comprehending the legal effect of his confession when he made it, and therefore same should not have been admitted. The state joined issue upon the motion. Appellant undertakes to reserve an exception to the action of the court in overruling the same. The trial judge appends to the bill the statement that—

“A great deal of evidence was offered by the state and defendant upon the hearing of said motion, and the court after hearing all evidence offered, overruled said motion.”

There does not appear as a part of the bill any evidence offered upon the hearing of the motion for new trial, and we fail to find in the statement of facts any testimony upon the issue raised by the motion. We are unable to act upon such assignment in the absence of facts before the court at the time he overruled the motion. We must assume that his action was proper and fully authorized.

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