
    WRIGHT v. STATE.
    (No. 5207.)
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1918.)
    1. Criminal Law <⅜=»925½(3) — New Trial— Conduct on Jury.
    That the jury, in their deliberations, referred to the fact that defendant during the trial dozed off to sleep and nodded several times, does not require a new trial, since the jury was not inhibited from talking of his manner and conduct in passing upon the weight of his testimony.
    2. Criminal Law <§=»1144(18) — Appeal—New Trial — Presumption in Favor on Trial Court’s Ruling.
    Where the order overruling motion for new trial shows that the court heard evidence and thereon determined the motion should be overruled, the presumption in favor of the correctness of the court’s ruling which is indulged on appeal implies that the evidence was sufficient to authorize the judgment rendered.
    3. Criminal Law <⅜=⅜1184 — Indeterminate Sentence — Modification.
    Where the trial court on conviction for murder failed to apply the Indeterminate Sentence Law, Yernon’s Ann. Code Cr. Proc. 1916, art. 865a, the judgment entering the sentence will he reformed so that it will provide for confinement in the state penitentiary within the period fixed by law as the minimum and maximum penalty for the offense.
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Alfred Wright was convicted of murder, and appeals.
    Judgment ordered reformed and affirmed.
    R. E. Seagler, of Palestine; for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and his punishment fixed at confinement in the penitentiary for a period of ten years.

Appellant and deceased, Grites Edwards, were young men, members of the same family, stepbrothers. The difficulty arose oyer the contention of deceased that appellant had broken a pair of clippers and that he should pay deceased for them. There is evidence that in the course of the quarrel the deceased, who appears to have been the aggressor in bringing on the difficulty, took hold of a chair and threatened appellant, and also evidence that the deceased used insulting remarks towards his stepmother, the mother of appellant. Deceased, on learning that appellant had gone in the house and gotten a gun, ran, and while he was running appellant fired one shot with a shotgun loaded with buckshot; some of the shot taking effect in the back of deceased and in the back of his neck, resulting in his death. Appellant claimed that he shot deceased because he was frightened by his threats and conduct, also because of his insulting language towards appellant’s mother. Some of the witnesses who were present disclaimed hearing the remarks which appellant and others testified to, and there was an issue of fact growing out of the evidence as to whether the remarks wore in fact made.

Appellant complains of the fact that the court submitted to the jury the issue of murder, claiming that the facts would support a conviction of no higher grade of offense than manslaughter. The jury was instructed upon the law of manslaughter, and there was evidence raising that issue, but not such to establish as a matter of law that adequate cause existed, nor that, as resulting therefrom, appellant’s mind was rendered incapable of cool reflection. There was testimony coming from the appellant himself, while testifying as a witness, which would be sufficient to justify the jury in rejecting his defensive theory of manslaughter.

The reference of the jury in their deliberations to the fact that the appellant, during the trial, dozed off to sleep and nodded several times, does not require a new trial, and the jury was not inhibited from talking of his manner and conduct in passing upon the weight to be given his testimony. Moreover, the order of the court overruling the motion for a new trial shows that the court heard evidence and thereon determined that the motion should be overruled. In this state of the record, the presumption in fayor of the correctness of the court’s ruling, which is indulged on appeal, would imply that on the hearing of the motion the evidence adduced was sufficient to authorize the judgment rendered thereon.

The sentence failed to apply the Indeterminate Law (article 865a, Vernon’s Code Cr. Proc. p/855). The judgment of the lower court entering the sentence will be reformed so that it will provide for the confinement of appellant in the state penitentiary for a period of not less than five nor more than ten years. See Cisneros v. State, 76 Tex. Cr. R. 313, 174 S. W. 608.

The judgment of the lower court is ordered reformed and affirmed. ■ 
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