
    McCOY v. STATE.
    (No. 11151.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    Rehearing Denied Feb. 1, 1928.
    1. Criminal law <&wkey;l 166½(12) — Comments of court on letter from deceased to defendant’s wife tending to show undue intimacy held not prejudicial, where conviction was for manslaughter only (Code Cr. Proc. 1925, art. 707).
    In prosecution for murder, remarks of court in connection with admission in evidence of letter from defendant’s wife to deceased tending to show undue intimacy between them, which remarks consisted of statements that judge did not know who wrote the letter, and that he thought the postmark was February 26th instead of February 25th, the date of the homicide, though erroneous as comment on evidence under Code Cr. Proc. 1925, art. 707, held not prejudicial, where conviction was for manslaughter only, since letter was admitted merely to prove killing in heat of passion.
    2. Criminal law <&wkey;l 120(8) — Testimony of deceased’s wife and testimony as to reputation of deceased, not shown by bill to be immaterial, held not reviewabie in murder prosecution involving question of deceased’s undue intimacy with defendant’s wife.
    In prosecution for murder, in which defendant attempted to show undue intimacy between •his wife and deceased to reduce offense to manslaughter, testimony admitted as to reputation of deceased as law-abiding citizen and for chastity and testimony of deceased’s wife held not re-, viewable under bill of exceptions which merely showed objection to testimony without disproving existence of issue in case upon which such testimony could be material.
    3. Homicide <&wkey;339 — Excluding evidence tending to show illicit relationship between deceased and defendant’s wife held not prejudicial, where conviction was for manslaughter only.
    In murder prosecution, in which defendant sought to prove undue intimacy between his wife and deceased in order to reduce offense to manslaughter, action of court in excluding hotel register offered in evidence to show deceased and defendant’s wife had spent night at hotel, registering under false names, though erroneous, held, not prejudicial, where fact was otherwise shown and conviction was for manslaughter only.
    4. Criminal law <&wkey;643 — Duties of official stenographer beyond statutory requirements rest largely within trial court’s discretion (Rev. St. 1925, art. 2324).
    All material matters relating to the trial, aside from those specifically named in Rev. St. 1925, art. 2324, should preferably be recorded by the official stenographer, but, in absence of statutory declaration, duties of stenographer in this respect are left largely to the trial court’s discretion.
    5. Criminal law <&wkey;643 — Refusal of court to require stenographer to take down examination of jurors held not abuse of discretion (Rev. St. 1925, art. 2324).
    Refusal of the court to direct stenographer' to take down examination of the jurors held, not abuse of discretion in murder prosecution, in absence of any showing that injury resulted, since Rev. St. 1925, art. 2324', only requires that stenographer record testimony, objections, rulings, and remarks of court thereon.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    C. W. McCoy was convicted of manslaughter, and he appeals.
    Affirmed.
    W.' F. Nix, of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manslaughter ; punishment, four years in the penitentiary.

Appellant relied on sqlf-defense and insulting conduct toward his wife. The verdict, being only for manslaughter, evinces the jury's acceptance of his claim that he killed deceased at the first meeting after learning of the supposed .illicit relations between deceased and appellant’s wife. Our discussion of the questions presented will be in the order in which same appear in appellant’s brief.

The homicide was on February 25,1927. A letter from appellant’s wife to deceased, the contents of which support the inference of illicit intimacy between them, was offered in evidence by appellant. Said letter was postmarked February 25, 1927, and same was found in the mail of deceased after his death. Remarks of the court, made in connection with the offering of said letter, and of the court’s ruling thereon, are made the subject of bill of exceptions No. 5. When the letter was offered, the court said:

“I do not know what is in it. I do not understand it. Does it show who wrote this? In the absence of other proof, I cannot tell where this comes from. Mr. Noland is not here to tell where he got it. I cannot tell to save my soul who wrote this or what it has got to do with the case.”

These remarks were excepted to. Further evidence as to the handwriting on the envelope of the letter was tendered, and the court then said, in substance, that there was no evidence that said letter was delivered to appellant until after the homicide. To this there was further exception.. During the discussion of said objection the court further said, “It is not an act of deceased, but an act of defendant’s wifeto which further objection was made.. Later during the same argument the court said, “There is no proof here how, nor when, if this was written by the same party that wrote the letter, it got in the envelope;” to which also objection was made. Appellant then introduced additional testimony bearing upon the admissibility of the envelope, and the court ruled that the letter was admissible, but said it made a difference with him in deciding the admissibility of the letter whether it was postmarked February 25th or February 26th, for he thought the postmark was February 26th instead of February 25th. This remark was also objected to; the ground of objections being that these remarks above set out were comments of the court on the weight of the testimony. It appears from the bill that a witness had testified that the postmark was February 25th. We have set the statements out at some length because of the importance appellant seems to attach to the occurrence, and in order that our ruling may be understood. We do not think any material error appears in this bill. The letter, which was admitted in evidence, was dated “Friday A. M.” Other testimony showed that February 25th, the day of the homicide, was Friday. It was not controverted that the letter was written by the wife of appellant to deceased. The only purpose of the introduction of said letter was to induce the jury to believe intimacy existed between deceased and appellant’s wife. That the jury did so believe is evidenced by their verdict. Whether the postmark on the envelope was February 25th, the day of the killing, or February 26th, seems to us to affect no material issue. Whatever the trial court may have thought or said of the date of the postmark, he admitted the letter in evidence, and the jury’s ae-ceptance of the effect of the introduction of the letter was in nowise affected by any remark of the court. Appellant cites many authorities supporting the admissibility of the letter in question. We think it clearly admissible. He cites others upon the wrong or improper comment by the court. We think these authorities sound, but that they are not applicable. In Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 8 A. L. R. 1096, we reaffirmed the rule that comments of the court upon the evidence are cause for reversal only when it reasonably appeared that injury ■ could have resulted therefrom.

Bill of exceptions No. 3 sets out the testimony of W. O. Ward supporting the reputation of deceased as a law-abiding citizen and for chastity. Clearly such issues might be in a case like this. Jones v. State, 38 Tex. Cr. R. 387, 46 S. W. 250; Tatum v. State, 43 Tex. Cr. R. 415, 66 S. W. 553; Orange v. State, 47 Tex. Cr. R. 338, 83 S. W. 385. Such being the case, it devolved upon appellant to make apparent in his bill of exceptions, not only that he objected to the testimony upon the ground stated, but also that in fact there was no issue before the court to which such testimony could be material. Thompson v. State, 29 Tex. App. 208, 15 S. W. 206; Spencer v. State, 61 Tex. Cr. R. 62, 133 S. W. 1049. Nothing in the bill under consideration informs this court that the testimony thus objected to was not in fact pertinent to issues in the case before the court. What we have just said applies also to bill of exceptions No. 4, wherein it appears that objection was made to testimony of the wife of deceased. To merely object upon the ground that the testimony has no probative force and does not tend to prove or disprove any issue, such objection being overruled, is not sufficient to bring a matter before us. The authorities cited by appellant in this connection seem not in point as we view' them.

Bill of exceptions No. 2 sets out alleged error in refusing to admit in evidence the register of the Santa Fé hotel in Amarillo in which appears as of date November, 1926, the names A. E. Wilson and Mary Lane. Other proof was before the jury that deceased had stated that he and the wife of appellant had spent the night at said hotel in November and that they had registered under the names above set out. We are of opinion, that the learned trial judge erred in rejecting this testimony, but are constrained to believe the error not of such gravity as to call for reversal. There was proof before the jury that deceased and Mrs. McOoy, wife of appellant, spent the night at said hotel together, and, had the register been admitted, same could have served no purpose further than to have aided in establishing facts usable merely to show an intimacy between deceased and appellant’s wife, information and belief of Which might have brought the mind of appellant to that condition which rendered it incapable of cool reflection, so that the killing of deceased by appellant would therefore be of no higher grade of homicide than manslaughter. The offense which the jury said appellant had committed being found by them to be manslaughter, such fact renders harmless the rejection of testimony whose only effect would have been to help bring the jury to that conclusion. Crawford v. State, 105 Tex. Cr. R. 281, 288 S. W. 213.

The only remaining complaint deemed necessary to mention is of the fact that the court declined to direct his stenographer to fake down the examination of the jurors, which is complained of in bill of exceptions No. 1. Article 2324 of our present Civil Statutes seems to require only that suc(i stenographer make a record of the testimony, objections to same, the rulings and remarks of the court thereon, and the exceptions taken. All material matters pertaining to the trial, aside from those specifically named in the statute, we think would greatly be aided, and the official stenographer should make notes and a record thereof. However, in the absence of statutory declarations requiring the stenographer to take down the examination of the jurors and other matters aside from those named in the statute, the duties of the stenographer seem left largely to the discretion of the trial court. We are not at liberty to hold-the refusal of the court to require the stenographer to take the examination of the jurors reversible error; there being no showing of any • abuse of the discretion of the court in the matter, or that by reason thereof any injury résulted to the appellant.

Finding no error in the record, the judg-ement will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have considered with care the very' courteous and forceful motion for rehearing and argument thereon filed by appellant. As was said in the original opinion, there can be no doubt that the learned trial judge committed error in making the remark as to his belief that the postmark on the envelope was dated February 26th. It is to __ be regretted that matters of this kind should occur when there seems so little reason for the trial judge to make such a remark in the jury’s presence in face of, the statute forbidding it. Article 707, O. O. P. If the letter which was finally admitted bore on any issue save that of manslaughter — of which offense only appellant was convicted —we would not hesitate to reverse because of such untimely remark, or, if the conviction had been for more than manslaughter, a reversal would unquestionably have been demanded. Appellant argues that the jury was likely impressed that such statement from the judge indicated that in his opinion the letter was fabricated for defense purposes, and would therefore conclude that even the issue of self-defense had no foundation in fact. We think the conclusion reached by appellant as to the probable consequence of the unfortunate incident is too speculative.

The other questions presented in the motion for rehearing are not thought to demand further attention than was given in our original opinion.

The motion for rehearing is overruled. 
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