
    ROGERS v. STATE.
    (No. 3852.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. Criminal Law <&wkey;721 — Misconduct of Counsel — Reference to Defendant’s Failure to Testify.
    On a trial for homicide, where insanity was relied on as a defense, and where defendant’s examination and cross-examination in the examining court were received in evidence, defendant’s counsel, in examining an expert witness, referred to defendant’s inability to give any fact or circumstance upon which to base a suspicion entertained by him. The state’s counsel thereupon remarked that they had had no chance to question defendant about that. Defendant’s counsel excepted to the remark as an inference prohibited by law. The court told the jury to pay no attention to the remark, and the state’s counsel then stated that he was alluding- to defendant’s testimony at the examining trial, and defendant’s counsel again objected. Held, that this could not be properly regarded as an allusion to defendant’s failure to testify, and, if it was, it was a bare allusion, and under the circumstances neither required nor authorized a reversal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <&wkey;>721.]
    2. Criminal Law <&wkey;1091—Bill oe Exceptions— Sufficiency to Show Error.
    A bill of exceptions complaining of a question asked defendant’s wife on cross-examination as to whether she heard a conversation between the prosecuting attorney and defendant’s counsel at the examining- trial and a statement by defendant’s counsel that insanity would not be interposed did not show error, where it showed that the question was not answered, and did not show what the wife testified on direct examination.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. &wkey;>1091.]
    3. Criminal Law &wkey;4S3, 489—Opinion Evidence-Examination of Experts.
    Where, in a criminal trial, a doctor testified for defendant concerning various physical ailments or defects, and that from- them and from defendant’s own statements to Mm it was Ms opinion that defendant was insane, it was not error to permit the state in cross-examining such doctor, and in examining a witness for the state, to ask whether each separate ailment or defect mentioned-showed that defendant was insane, instead of grouping all of them and asking for the witness’ opinion thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1071, 1075, 1078; Dee. Dig. &wkey;483, 489.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Charles P. Rogers was convicted of murder, and he appeals.
    Affirmed.
    John H. Crooker, Crim. Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his penalty assessed at 12 years in the penitentiary. The evidence conclusively establishes that appellant killed the deceased. Prom the state’s standpoint and evidence the killing was a most atrocious and horrible murder. A detail of the evidence is unnecessary.

Appellant’s defenses were self-defense and insanity. Both these questions were submitted in proper charges by the court, to which there was no objection. The evidence on both issues was amply sufficient to justify the jury in believing neither, which they evidently did.

On his insanity defense appellant introduced one doctor, who, in effect, testified of his physical examination of appellant and to various physical ailments or defects, and, in addition,' that from all these and the appellant’s own statements to him it was his opinion that appellant was insane at the time he killed deceased. On the other hand, the state introduced two or three doctors, experts, who testified as to their examination of the appellant, and they testified he was sane. In addition, the state introduced some two nonexpert witnesses, who showed a knowledge and familiarity of appellant to such an extent and for such a length of time that they each, in effect, testified that, in their opinion, he was not insane. It is unnecessary to recite all this testimony. It was amply sufficient to establish, and from it the jury were clearly authorized to find, as they did, that he was not insane but sane at the time he killed the deceased.

In appellant’s first bill of exceptions, he, in effect, complains that the prosecuting attorney in the examination of one of the doctors alluded to appellant’s failure to testify. What occurred is shown by the court’s statement and qualification in approving the bill, which is:

“The defendant had testified in the examining court in his own behalf. His testimony in the examining court, both direct and the cross, was offered in evidence upon the trial of this case unobjeeted to, the state having offered the cross-examination of the defendant’s testimony in the examining court, and the defendant having offered his dix-ect testimony.
“Defendant’s counsel propounded to the witness Dr. Greenwood the following question: ‘His house was exposed in 65 feet of him, day and night, there was nothing could go on there unseen and unknown to him, and notwithstanding his opportunity of knowing and notwithstanding the fact that he was never able to give one fact or circumstance upon which to base his suspicion.’
“State’s counsel remarked: ‘We have never had a chance to question this defendant on that. Guy [meaning Guy Graham, counsel for the defendant] is stating that.’
“Defendant’s counsel, Mr. Graham, remarked to the court: ‘I want to except to the counsel’s remarks as being an inference that is inhibited by law.’
“The court instructed the jury to pay no attention to the remark of the district attorney.
“State’s counsel then and there stated that he was alluding to the testimony given by the defendant at the examining trial. Counsel for the defendant, Mr. Graham, objected to tMs last remark of the district attorney.
“Those were the only objections made by the counsel for the defendant, and with this explanation the above bill is approved and ordered filed in the record of this case this, the 28th day of August, A. D. 1915.”

In our opinion, this could not properly be regarded as an allusion to appellant’s failure to testify; but, if it was, it was a bare allusion, and, under the circumstances stated by the bill, it would neither require nor authorize a reversal by this court. Gatlin v. State, 72 Tex. Cr. R. 516, 163 S. W. 428; Vickers v. State, 169 S. W. 669; Cooper v. State, 72 Tex. Cr. R. 270, 162 S. W. 364; and authorities' cited in these cases. It is useless to collate the other authorities to the same effect.

Appellant’s next bill complains of the state’s cross-examination of appellant’s wife. The bill in no way shows what the wife had testified on direct examination. It gives the questions and answers of her on cross-examination, to which appellant objected. The effect, without copying the questions and answers, is that she was present and heard the testimony during the examining trial of appellant. Then the state asked her: “You knew then, you thought, therej was something the matter with your husband’s mind, didn’t you?” She answered: “Yes', sir.” She was asked: “You recall the testimony there, something about a trip to Neiw Orleans?” She answered: “Yes, sir.” Sbe was then asked: “You recall some remarks that Mr. Graham made to me there in your presence?” Appellant then objected that such remarks would be inadmissible. The state then asked: “You recall when I asked him about a trip to New Orleans, and whether or not he had anything the matter with his mind, and Mr. Graham assured me that there would be- no insanity interposed in this case?” The appellant objected, and stated that that had been ruled out once. The court then sustained appellant’s objection, and the witness did not answer. The court, in qualifying the bill on this question, states that tlie witness was not permitted to answer tlie questions. This bill presents no error.

Appellant’s third bill is very lengthy. It is unnecessary to copy it. It contains the questions and answers of Dr. Eoss, appellant’s only expert witness, on the cross-examination of him by the state, wherein the state toolr up separately and asked Dr. Ross if either of the physical ailments or defects of appellant in his opinion would show that appellant was insane. He answered they would not. Appellant's objection to this was that it was unfair to appellant to ask about these separate and distinct things, but that all of them should have been grouped, and from them, as thus grouped, as a hypothetical question, Dr. Eoss should have been asked whether or not, in his opinion from them, all, appellant was insane. We think that appellant’s objection is untenable; that the state’s cross-examination of his witness was entirely proper and justifiable. The same character of examination was indulged in an examination of Dr. York by the state. This likewise presents no error.

These are all the questions raised in this case.

No error is shown, and the judgment is affirmed. 
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