
    GUERRERO v. STATE.
    (No. 3348.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Witnesses (§ 300) — Testimony AsainSt Self.
    A defendant in a criminal prosecution has the right not to testify therein. "
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1042, 1042%; Dec. Dig. § 300.]
    2. Homicide (§ 166) — Evidence—Motive.
    In a prosecution for murder, a conversation, wherein the father of the murdered girl told defendant that she had told him that defendant had said to her that if she would not run away with him he would kill her, and that if she told any of their “secrets” he would kill her, and wherein defendant asked if there was any proof as to that matter, and, when told that there was, said they would go to law about it, was admissible as tending to show his motive in killing deceased.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    3. Criminal Law (§ 406) — Evidence—Admissions.
    Defendant’s statement, shortly after the shooting, made to one who asked why he had killed the girl, that “in Mexico they are killing lots of them — why can’t I kill one?” was an admission.that he killed the girl, and admissible to prove that fact.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    4. Criminal Law (§ 1137) — Appeaj>-Paett Entitled to Allege Error.
    In a prosecution for homicide, where a witness testified to an admission by defendant, defendant, who, on cross-examination, elicited the witness’ question to him, “For God’s sake what have you done?” could not complain of its admission, if harmful.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. § 1137.]
    5. Criminal Law (§ 361) — Trial—Conduct of Defendant.
    In a prosecution for murder, where the plea was insanity and where defendant, while the jury was in the box, would throw his head about, shake his hands, and shuffle his feet, evidence for the state that such conduct did not occur when defendant was not in view of the jury was admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.]
    6. Criminal Law (§ 1166%) — Trial—Custody of Accused.
    In a prosecution for murder, where the sheriff on one occasion did not take the handcuffs off the accused until the jury were taking their seats, but it did not appear that the jury saw him take the handcuffs off accused, such custody or restraint of accused was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    
      7. Cbiminal Raw (§ 311) — Presumptions— Sanity.
    Every man is presumed to be sane until the contrary appears to the satisfaction of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 311.}
    8. Criminal Law (§ 331*) — Burden of Proof —Insanity.
    The burden of proof is on defendant setting up insanity as a defense to show that he was insane at the time of the commission of the offense.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.}
    9. Homicide (§ 309) — Instructions—Manslaughter.
    Where the only evidence as to why defendant killed deceased was, that he wanted her to run off with him and that she would not, that there were “secrets” between them which he did not wish her to disclose to her parents, and that he had threatened to kill, her if she told them, and that she told her parents of the threats, and he feared she would disclose the “secrets,” and her father questioned him about the matter, and some three hours afterwards defendant placed a pistol near her temple and fired, killing her instantly, there was no issue of manslaughter in the case; and hence no error in refusing to give a specially requested charge thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    10. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    Where defendant admitted to a witness that he had killed the deceased, the court did not err in refusing a charge on circumstantial evidence, as it is only when the evidence is wholly circumstantial that such a charge is required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    11. Criminal Law (§ 721) — Remarks of Prosecutor — Defendant’s Failure to Testify.
    In a prosecution for murder a district attorney’s remarks as to what defendant said when the father of the murdered girl asked him why he had said to her that if she would not run away with him he would kill her and if she told what defendant said he would kill her. that defendant did not deny it, as he would if it had not been true, and that the jury knew he would have denied it, but instead he said they would go to law, were not objectionable as a reference to defendant’s failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    12. Criminal Law (§ 1092) — Appeal—Bill of Exceptions — Tuns for Filing.
    A bill of exceptions, to authorize the Court of Criminal Appeals to consider it, should be filed during term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. É 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    13. Criminal Law (§ 854) — Trial—Conduct of Jury — “Separation.”
    Where the jury room was upstairs over the district court room, and the stairway leading to it was seven or eight feet from the door of the courtroom, and when the jury came down the stairs and started to take their seats it was discovered that one was not present, though he was seen coming down the stairs, and his tardiness was only from half a minute to a minute and a half, and it was impossible for him to have met any one, there was not a “separation” of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § 854.
    
    For other definitions, see Words and Phrases, First and Second Series, Separation of Jury.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Benigno Guerrero was convicted of murder, and he appeals.
    Affirmed.
    Louis T. Dugger, of San Marcos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at death, from which judgment he prosecutes this appeal.

No one saw the actual shooting, now living, other than appellant, and he, as he had a right not to do, did not testify in the case. Appellant had married Catarino Morales,- and is charged with having killed a sister of his wife, Isabel Morales, a 15 year old girl.

As tending to show a motive for the killing, the father of the two girls, Nicholas Morales, testified that on the day of the homicide he had a conversation with the defendant; that in this conversation he (the witness) told appellant that the girl Isabel had told him that he (defendant) had said to her, “If she (Isabel) would not run away with him he would kill her, and that if she gave away any of the secrets they had between them he would kill her;” when appellant asked if he had any proof in regard to the matter, and when told that the father had appellant replied, “Well, we will go to law about it.” The girl was killed that evening in the field, while she was at work. This conversation was objected to, but the court did not err in admitting it as it clearly tended to show the motive of appellant in killing deceased.

Appellant also objected to a conversation had between appellant and Gregorio Valdez shortly after the shooting. Valdez says he heard of the shooting, and went to appellant’s home and asked why he had killed the girl, when appellant replied, “In Mexico they are killing lots of them — why can’t I kill one?” This was an admission that he killed the girl, and was admissible to prove that fact. It is not contended that he was under arrest at that time, in fact it is shown by all the testimony that he was not. However, when the testimony was admitted, appellant’s counsel cross-examined the witness in regard to this statement, asked the following questions, and elicited the following answers thereto:

“Q. State exactly what words you used in that question? A. When I got to the house he was in bed, and I says: ‘For God’s sake, Guerrero, what have you done?’ Q. Now, was this answer about killing so many Mexicans in Mexico and about Mm having a right to kill one, was that the answer to that question, ‘For God’s sake what have you done?’ A. That’s what he said. That’s all he said to him.”

The state on its direct examination had. not elicited the question propounded by appellant to the witness, but merely the statement of defendant, and if the question, “For God’s sake, what have you done,” was hurtful, it was elicited by appellant on cross-examination in answer to a direct question.

The defendant’s plea was insanity, and he introduced several witnesses to show that the relatives of his mother were insane, that on one occasion he himself attempted to commit suicide, and other facts and circumstances were introduced by defendant on this issue. The state introduced a number of witnesses who testified that appellant was sane. Among other things the record discloses that, while the trial was being conducted, and the jury was in the box, appellant “would throw his head about, shake his hands, and shuffle his feet.” The state introduced witnesses who testified that when the court was at recess and the jury was not present appellant would cease to “throw his head about, shake his hands, and shuffle his feet.” These antics in the presence of the jury were performed evidently to assist his plea of insanity, and there was no error in permitting the state to show that they did not take place when he was not in view of the jury.

It is shown by one bill that on one occasion the sheriff did not take the handcuffs off the prisoner until the jury was being brought in and were taking their seats. There is nothing in the bill to show that the jury saw the sheriff take the handcuffs ofl: of appellant. The court says it is usual and customary in bringing prisoners from the jail to the courtroom to handcuff them, but when in the courtroom they are taken ofl:. Only in this one instance did the jury arrive in the courtroom before the handcuffs had been removed, and in this instance it is not disclosed that the jury saw that the prisoner was handcuffed. Prisoners should never be kept manacled while being tried, unless absolutely necessary, but the state of facts shown by this bill does not present error.

The only objection urged to the court’s charge when presented to counsel for inspection was, “that those paragraphs presenting the issue of insanity were erroneous in that said charge is upon the weight of the evidence, in that it specifies that such testimony must be introduced before a jury can believe that the defendant was insane at the time of the alleged commission of the offense.” We suppose this objection is leveled at that portion of the charge which informs the jury, “that every man is presumed to be sane until the contrary appears to the satisfaction of the jury.” That is the law in this state, and the court did not err in so instructing the jury. The burden of proof is on the-defendant to show that he was insane at the time of the commission of the offense. In addition to this the court gave the special charge requested by appellant on this issue.

The court did not err in refusing to give the special charge presenting the issue of manslaughter. The only evidence in this-case which would indicate the reason appellant killed deceased was that he wanted her to run off with him and she would not do it; that there were “secrets” between the two> he did not wish her to disclose to her parents, and had threatened to kill her if she' did tell them; and that she told her parents about the threats, and he feared she would also disclose the “secrets.” The girl’s father had questioned him about this matter some three hours before the homicide, and the facts would show he went'to her while she was at work in the field, placed the muzzle of a 45-ealiber pistol near her temple, and bored a hole through her head, she dying instantly. There was no issue of manslaughter in the case.

As appellant admitted to Gregorio Valdez he had killed the girl, the court did not err in refusing the charge on circumstantial evidence. It is only when the evidence is wholly circumstantial that such a charge is required.

The other special charges, in so far as they are the law of the case, are fully covered by the court’s charge.

In another bill the remarks of the district attorney are complained of. The bill shows that the district attorney made the following remarks:

“ ‘What did you say when the father of the murdered girl said: “Benigno, why did you say to Isabel that if she did not run away with you you would kill her, and if she told what you said you would kill her?” ’ The district attorney then turned and faced defendant, leveled his finger at him and said: ‘D'id you deny it? No. You know if it had not been true that you would have denied it then.’ And turning to the jury the district attorney continued: ‘And you, gentlemen of the jury, know he would have denied it to his father-in-law, but, instead, defendant said, 'If you can prove it, go to the1 law.’ ”

These remarks, as the bill plainly shows, referred to the conversation had between appellant and the father of the girl at the noon hour, and could not be construed into referring to the failure of the defendant to testify.

The only other matter presented by the record that we deem it necessary to discuss is the one that contends that the jury was permitted to separate during the trial' of the case. The bill presenting the evidence was not filed until long after the adjournment of court for the term. It should have been filed during term time to authorize us to consider it. But we have read the evidence heard. It appears that the jury room is upstairs over tile district court room, and that the stairway leading to the jury room is some seven or eight feet from the door of the district court room. That during a recess of the court the jury retired to their room in charge of an officer. The jury came down the stairs and started to take their seats, when it was discovered that only 11 were present. The sheriff started up the stairway after the other juryman, when he was seen coming down. He explained that he was in the toilet when the other jurymen started downstairs, and he came on as soon as lie got out of the closet. The time from the time the 11 jurors came downstairs to the the time the last juror was coming down is estimated at from thirty seconds to a minute and a half. The record discloses it was impossible for him to have met any person. This in law would not be deemed a separation, and the court did not err in so holding.

The judgment is affirmed.  