
    NICHOLSON v. STATE.
    (No. 6696.)
    (Court of Criminal Appeals of Texas.
    March 1, 1922.
    Rehearing Denied April 5, 1922.)
    1. Criminal law <⅜=^517(4) — Defendant’s confession while under arrest and unwarned, stating facts showing his guilt, held admissible.
    In prosecution for wife murder, testimony as to confession made by defendant to police officers while under arrest and unwarned that he had killed his wife with a razor, which he then produced, with blood thereon, Held- admissible, under Vernon’s Ann. Code Cr. Proc. 1916, art. 810, in view of evidence that the deceased had been cut from ear to ear with a very sharp instrument.
    2. Homicide <©=>191 — Testimony as to assault made by deceased upon others of which defendant was not shown to have had knowledge not admissible on issue of self-defense.
    In prosecution for wife murder, in which defendant claimed to have acted in self-defense, testimony as to wife’s assaults upon others, offered to show that phe was a dangerous and violent woman, held properly rejected on failure to show that defendant knew of the matters shown by such testimony.
    3. Criminal law <®=>687(2) — Evidence may be introduced any time before conclusion of argument.
    Under statute governing introduction of evidence matters of procedure are largely discretionary with the trial court, and evidence may be introduced at any time before the argument is concluded in the exercise of such discretion.
    4. Criminal law ⅞=»1153(1) — Court’s discretion in permitting evidence to be introduced before conclusion of argument not disturbed.
    Evidence may be introduced at any time before the argument is concluded in the exercise of the court’s discretion, and the action of the court in admitting such evidence will be upheld, unless it is affirmatively shown to have resulted in injury.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Johnnie Nicholson was convicted of murder, and he appeals.
    Affirmed.
    W. A. Rowe and John T. Duncan, both of La Grange, for appellant.
    E. T. Branch, Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Harris county of murder, and his punishment fixed at confinement in the penitentiary for life.

Appellant was charged with the killing of his wife. The parties were negroes. The killing took place on a public street, and in the presence of a number of witnesses, but as it was night the parties near by were unaware of the seriousness of what was taking place until appellant arose from where he was astride of his wife’s body on the ground and fled, and it was discovered that her throat was cut. The windpipe and jugular vein of deceased were cut entirely in two, the head being nearly severed from the body. There were two other cuts across the throat also. The killing took place between 8 and 9 o’clock at night. Shortly after 9 o’clock appellant walked into the police headquarters and asked for the chief of police, and informed officer Beverly of the fact that he had killed his wife.

The testimony of officer Beverly as to what was said and done by appellant at the time he came into the police station is made the subject of a bill of exceptions, it being contended by appellant that he was under arrest and unwarned at the time. Both of these facts seem well established, the officer testifying that he would not have permitted appellant to leave, and that he considered him a prisoner at the time the statements in question were made. No attempt was made by the state to show a warning, or that the statements were reduced to writing, but reliance was had in the introduction of such statement upon the exception named in article 810, Vernon’s G. O. P„ which seems to be of equal force as affecting the admissibility of confessions, as the other portions of said article. Said exception states that, if, in connection with the confession, a statement of facts or circumstances is made which is found to be true, and which conduces to establish the guilt of the accused, same becomes admissible. When appellant confessed to said officer that he had killed his wife, no one knew what instrument had been used to cause the death. He further stated in that connection that he had killed her with a razor, and produced same, saying that it was with this razor that he killed her. The razor had blood on it, and had large nicks in it, the state contending that said nicks were made by coming in contact with the vertebrae of the backbone of deceased. As we have stated above, when the woman’s body was examined it was found that her throat was cut from ear to ear, and it was evident that the wound was inflicted with a very sharp instrument. We think the statement made by appellant was one of facts and circumstances found to be true that conduced to establish guilt, and that all that was s;aid by him to the officer in that connection was admissible under the exception mentioned. The extent to which such facts and circumstances must needs go in conducing to establish guilt is not set out in the statute. We are led to believe that, if same conduces in any degree or to any extent to show guilt, it would he admissible.

Appellant swore that his wife attached him with a hnife, and that he hilled her in self-defense against such attach. He proved her general reputation as being that of a dangerous and violent woman, and by eight bills of exception complains of the rejection of the testimony of a number of witnesses offered by him to prove that deceased had made violent assaults upon them, or that they hnew of her having made such assaults on others, or that complaints had been made against her • for such conduct. The state’s objection to such evidence was properly sustained. The rule seems to be that, in connection with self-defense, evidence relating to other particular acts of violence on the part of the injured party, which explain the condition of the mind of the accused, or strengthen bis claim that from his viewpoint he believed himself in danger, is admissible; but as a predicate therefor it must be shown that the accused knew or had been informed of the matters proposed be given in such testimony at the time of the act charged against him. Appellant did not testify in this case to knowledge of any of the transactions embraced in the rejected testimony. Dodson v. State, 44 Tex. Cr. R. 204, 70 S. W. 969; Crow v. State, 48 Tex. Cr. R. 420, 88 S. W. 814; Cole v. State, 48 Tex. Cr. R. 444, 88 S. W. 341; Hysaw v. State, 69 Tex. Cr. R. 562, 155 S. W. 941; Willis v. State, 49 Tex. Cr. R. 142, 90 S. W. 1100.

Appellant has a bill of exceptions to the court permitting certain evidence to be introduced by the state after the defense had rested, it being objected that such evidence was not properly in rebuttal. As an additional ground of exception in said bill, complaint is made of certain remarks made by the trial court to the effect that such evidence was in rebuttal. The trial court declined to approve the bill upon the ground that no exception was taken by appellant’s counsel to any such remarks of the court. Our statute governing the introduction of evidence seems to confide matters of procedure largely tó the discretion of the trial court, and permits the introduction of evidence at any time before the argument is concluded, and the decisions of this court seem uniform in holding that, where evidence is introduced out of its order, the action of the trial court in admitting same will be upheld unless it be affirmatively shown that some injury resulted. No such injury appears in regard to the matter here complained of.

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

On Motion for Rehearing.

HAWI-CINS, J.

We have carefully examined appellant’s motion for rehearing. There is no question in our minds but that we reached the correct decision on the issues presented.

Complaint is made because we declined to consider a bill of exceptions taken to some remark of the court. The bill was refused by the trial judge for the reason, as stated, that no exception was taken to any statement made’by him. It is asserted in appellant’s motion that the bill was mailed to the judge, and it was not known to appellant’s attorney that the bill had been refused until it was discovered by him with such indorsement on it after the record was filed- in this court. A controversy arising between the trial judge and attorneys as to whether certain matters did or did not occur cannot be settled by us in the state we find the record upon this point. We are bound by the bill as we find it. We have had occasion recently to state our views with reference to matters of this kind in Jones v. State, 89 Tex. Cr. R. 6, 229 S. W. 865, Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869, and Donohue v. State (Tex. Cr. App., Jan. 11, 1922) 236 S. W. 86. In the latter case we suggested the proper procedure where the trial judge denied the occurrence of the matter which counsel asserted.

The motion for rehearing is overruled. 
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