
    LEE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Punishment.
    While the punishment for murder should not be assessed at death, unless the testimony to its fullest extent meets the requirements of the law, where the evidence justifies such punishment, the Court of Criminal Appeals cannot interfere except for prejudicial error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    2. Criminal Law (§ 365) — Evidence—Other Offenses.
    On a trial for murdering W., where the killing of O. was a part of the transaction occurring on the occasion of the homicide, evidence relative thereto was properly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 807; Doc. Dig. § 365.]
    3. Homicide (§ 156) — Evidence — Admissibility.
    On a trial for homicide, a note sent by accused to the sheriff, which disclosed premeditation and a formed and fixed design to kill, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 286, 287; Dee. Dig. § 156.]
    4. Criminal Law (§ 1090) — Appeal—Reservation op Grounds op Review — Bills op Exception.
    Alleged improper argument by the county attorney could not be reviewed on appeal, where there was no bill of exception in the record showing that such argument was used.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 570*) — Evidence — Weight and Sufficiency.
    Where the cross-examination of accused’s witnesses, who testified in support of his plea of insanity, in effect destroyed such plea, it was not necessary for the state to introduce other witnesses.
    [Ed. Note. — For other cases, Law. Cent. Dig. §§ 1285-1288; 570.] see Criminal Dec. Dig. §
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    Thomas Lee was convicted of murder in the first degree, and he appeals.
    Affirmed.
    Phillip O. Lopp, A. C. Heath, and H. D. Payne, all of Ft. Worth, 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
    
   HARPER, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

In this case, as in all cases, when this punishment is inflicted, we have given most careful consideration to the entire record. It is a punishment that ought never to be inflicted only in those instances where the testimony, to its fullest extent, meets the requirements of the law; but, if the evidence justifies such punishment, then we have no right to stay the hands of the law, unless in the trial of the case there was some error committed which was prejudicial to the person on trial. In this case there are but three bills of exception. In the first bill of exceptions it is shown that appellant objected to the proof that he had killed Policeman Ogletree. The bill is so incomplete as to hardly call for review; but, inasmuch as the death penalty was assessed, we have read the entire record to determine whether or not this testimony ought to have been admitted. After reading the record we are of the opinion that it was" admissible, as it is a part of the transaction occurring on that occasion.

The next bill complains of the action of the court in admitting a note sent by appellant to the "sheriff of the county. This note discloses premeditation and a formed and fixed design to kill, and under such circumstances it was admissible. The third bill relates to the same matter as the first bill, the killing of Ogletree. While it is true that appellant was being prosecuted for the killing of Walter Moore, yet the killing of Officer Ogletree was so connected and incident to this offense as to render this evidence admissible.

There is no bill of exception in the record showing that the county attorney used the argument complained of in the motion for a new trial; consequently we cannot review that ground in the motion.

The evidence amply supports the verdict. The record would disclose that appellant had gambled the night before with one Pete Soles, and lost his money; that he decided to kill Pete Soles, armed himself, and went to hunt for him, and when he found him he shot Mm; that Walter Moore had been a witness against him on a former occasion, and after shooting Pete Soles he said, “I know they are going to get me, and I am going to get as many of them as I can;” that he went to the place where he found Walter Moore, and said, “O, yes, I got you now,” and shot and killed Walter Moore.

Defendant’s plea was insanity. This plea was fully and fairly presented by the court, and in a way not complained of by appellant. But he says when he introduced this evidence on insanity the state sought to have introduced some witnesses. When appellant’s own witnesses, on cross-examination, would, in effect, destroy this plea, it was not necessary for the state to introduce other witnesses.

The judgment is affirmed.  