
    (85 Tex. Cr. R. 184)
    MAUNEY v. STATE.
    (No. 4861.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.
    On Motion for Rehearing, April 16, 1919.)
    1. Homicide <§=>158(1,4) — Evidence — Threats.
    In homicide prosecution, where, during the evening before the killing, accused’s sister had threatened to shoot deceased, and accused in answer had said, “Never mind; that is my affair, and I will see to it,” the statements by both the sister and accused are admissible.
    2. Criminal Law <§=>1091(4) — Appeal—Bill oe Exceptions — Sueficiency.
    Bill of exceptions, consisting of questions and answers, followed by statement that evidence was objected to because irrelevant, immaterial, incompetent, and prejudicial, where no surrounding facts are stated, and no reason givon why the evidence is irrelevant, etc., will not be considered.
    3. Criminal Law <§=>450 — Evidence—Province oe Jury.
    In homicide prosecution, question asked defendant’s sister whether it was not a fact that she, her father, and defendant had had no intention of pleading insanity until after the examining trial, and people had testified that the reputation of witness and defendant for virtue and chastity was bad, leading them to think that their plea of insult to female relative was broken down, and answer thereto that witness “knew it at the examining trial,” and “as soon as we employed our lawyer,” did not invade province of jury.
    4. Criminal Law <§=>448(1) — Evidence—Conclusion oe Attorney.
    In homicide prosecution, question asked defendant’s sister of whether it was not a fact that she, her father, and defendant had had no intention of pleading insanity until after the examining trial, and people had testified that the reputation of witness and defendant for virtue and chastity was bad, leading them to think that their plea of insult to female relative was broken down and answer thereto that witness “knew it at the examining trial,” and “as soon as we employed our lawyer,” did not call for a conclusion of the attorney.
    5. Criminal Law <§=>448(1) — Evidence — Homicide Prosecution.
    In homicide prosecution, question of whether witness was under the rule, and answer that witness did not think so, was not objectionable.
    6. Criminal Law <§=>338(1) — Evidence — Homicide Prosecution.
    In homicide prosecution, evidence that witness was present at the examining trial was not objectionable.
    7. Witnesses <§=>77 — Reputation oe Deceased — Discretion — Preliminary Examination oe Witness.
    Examination by prosecuting attorney of witness offered by defendant on question of general reputation of deceased, for purpose of preliminary test of witness, is discretionary with the court.
    8. Criminal Law <@=»1091(3) — Appeal—Bill of Exceptions — Examination of Experts.
    Bill of exceptions, quoting from a hypothetical case stated to expert witness, and stating that it was objected to because it did not conform to the statutes of Texas, nor to rules of courts, without specifying the particular statute or rule violated, is insufficient.
    9. Criminal Law <@=51091(3) — Appeal—Bill of Exceptions — Evidence.
    Bill of exceptions objecting to testimony upon ground that the proper predicate had not been laid, not containing statement of any fact showing why such evidence is objectionable, was insufficient.
    10. Obiminal Law <@=>1091(4) — Appeal—Bill of Exceptions.
    Bill of exceptions setting out numerous questions and answers with general objection to the whole, or a general motion to exclude all the testimony of witness, not specifying any fact or facts making the evidence inadmissible, will not be considered.
    11. Criminal Law <@=>730(14) — Argument of Counsel — Action of Court.
    In homicide prosecution, prosecutor’s statement during his argument that, “if the jury under tho evidence in this case cannot convict the defendant, they might as well tear down the courthouse,” and further statement that if defendant was convicted she would have the right to go to the Governor and ask him for a pardon, was not reversible error, where court instructed jury not to consider such statements.
    12. Criminal Law <@=>1163(6) — Review—Misconduct of Jury — Conversation with Outsider — Presumption as to Prejudice.
    Conversation of juror with another person without court’s permission, in violation of Code Cr. Proc. 1911, art. 748, will be presumed upon conviction to have been injurious to defendant, but such presumption can be overcome, burden being upon the state to satisfy court that no injury has resulted.
    13. Contempt <@=>14 — Conversation with Juror.
    Juror and person with whom he converses without court’s permission, in violation of Code Cr. Proc. 1911, art. 748, is guilty of contempt under article 749.
    14. Criminal Law <@=>855(8) — Misconduct of Jury — Conversation with Outsider.
    Code Cr. Proc. 1911, art. 748, prohibiting juror from conversing with another person without court’s permission, should be strictly enforced.
    15. Homicide <@=>340(4) — Review—Harmless Error — Instruction.
    In homicide prosecution alleged errors in charging as to what facts would reduce an unlawful killing from murder to manslaughter was harmless where defendant was convicted of manslaughter.
    16. Criminal Law <@=>829(5) — Trial — Instructions.
    There was no error in refusing special charge on self-defense substantially the same as the special charge given by court on the same subject.
    17. Criminal Law <@=>1159(3) — Review—Conflicting Evidence.
    Court of Criminal Appeals will not reverse judgment where the evidence is merely conflicting.
    18. Homicide <@=>332(3) — Review—Insanity-Conflicting Evidence.
    In homicide prosecution defended on ground of insanity, evidence held, sufficiently conflicting to justify court of criminal appeals in refusing to disturb verdict of guilty.
    On Motion for Rehearing.
    19. Criminal Law <@=>1091(1,10) — Appeal-Bill of Exceptions.
    Bill of exceptions must be complete in itself, and must show not only what transpired, but must set out objection and enough facts to make the error complained of apparent, without the necessity of appellate court searching the record.
    20. Criminal Law <@=>1091(3) — Appeal—Bill of Exceptions.
    Bill of exceptions to cross-examination as to witness’ examination before the grand jury, objected to on ground that defendant was not present and that such evidence was not binding upon her, is insufficient.
    Appeal from District Court, Hopkins County; William- Pierson, Judge.
    Maude Mauney was convicted of manslaughter, and she appeals.
    Affirmed.
    J. A. Dial, of Sulphur Springs, and Martin & McDonald, of Austin, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case the appellant was charged by indictment in the district court of Hopkins county with the offense of murder, which, upon trial, was by the jury reduced to manslaughter, of which she was convicted, and her punishment fixed at confinement in the penitentiary for five years.

Appellant took 35 hills of exceptions during the course of the trial, a number of which do not appear in the record by written and filed agreement by counsel. We shall notice all those which we deem of sufficient importance.

By her bill of exceptions No. 2 appellant seeks a review of the trial court’s action in permitting the witness Easley, for the state, to tell what the sister of the appellant, Miss Allie Lee Mauney, said the evening before the killing; the objection being that it was the act and statement of another party not shown to be ratified by tbe appellant, but disaffirmed by ber. We see no error in tbe ruling as tbe same appears in tbe record. Tbe witness Easley testified tbat appellant bad pboned bim to come to where she and her sister were on tbe second day before tbe billing, but that he told ber be could not come until tbe next day, and accordingly be met tbe two women on tbe evening before tbe killing. Appellant then told Easley at length of tbe acts, statements, and conduct of deceased in watching and following tbe witness’ car and appellant’s car and having others to watch and follow them. During tbe conversation Allie Lee Mauney spoke up, and said tbat be bad been following her (which “ber” is not very clear), and stated tbat “if he did not cut it out-she would shoot his G — ■— d-off.” It appears that appellant then said never mind, that was ber affair, and she would see to it herself.

Reference to tbe statement of facts for tbe surroundings discloses tbat witness bad told “them” tbat be would not do anything with it, and tbat Miss Maude (appellant) said that she would attend to it herself, directly after tbe statement by Allie Lee which is here objected to. This was about sundown before tbe killing tbe next morning. Tbe statements of Allie Lee so made are admissible to explain and make clear what appellant meant when she made tbe threatening statements attributed to ber. It seems clear tbat if one person threaten to shoot another, and the accused, being present and hearing tbe threat, says, “Never mind, that is my affair and I will see to it,” and very soon thereafter herself shoots such party, that both ber statement and th&t of the other person, explanatory and antecedent to hers, will be admissible.

Appellant’s bill No. 7 cannot be considered for several reasons. It consists of about 10 questions and their answers, followed by tbe statement that said evidence at the time it was offered was objected to because it was irrelevant, immaterial, incompetent, and prejudicial. No surrounding facts are stated, and no reason given why the same falls under any of these general heads of objection. This court holds that “incompetent and irrelevant” is without meaning and indefinite. Pangburn v. State, 56 S. W. 72; also that “irrelevant and prejudicial” is too general to be considered. Wilson v. State, 63 Tex. Cr. R. 82, 138 S. W. 409; also “irrelevant and immaterial” is too general to be considered. Jones v. State, 65 Tex. Cr. R. 69, 144 S. W. 252. For these reasons this bill cannot be considered, and we note the same defects obtain as to appellant’s bills Nos. 9, 10, 13, 15, 16, 17, 24, and 25, none of which will be further considered.

Bill of exceptions No. 12 complains of the action of the trial court in permitting the prosecution to ask Allie Lee Mauney, the sis ter of appellant, if it was not a fact that she and her father and the appellant had no intention of pleading insanity until after the examining trial, after the best people of that country had come there and testified that the reputation of appellant and witness were bad for virtue and chastity, “and you thought your plea of insult to a female relative was broken down, then you decided to put in the insanity plea.” To which the witness answered “I knew it at the examining trial; I knew it just as soon as we employed our lawyer.” The objection, as stated, to both question and answer, is that the same is argumentative, prejudicial, called for a conclusion of the attorney, and invades the province of the jury.

Neither the question nor answer invades the province of the jury, nor does the same call for a conclusion of the attorney, and to say that the same is argumentative and prejudicial is merely a general and indefinite statement, which presents nothing that we can consider.

Bill of exceptions No. 14 presents no error. Several different questions were asked, and when objection was made the same were not pressed to answer, and the only’questions permitted by the court to be answered were whether the witness Jack Mauney was under the rule, to which he answered he did not think so, and the further question if he was not present when the examining trial was had, to which witness answered that he was. This court has held many times that when the bill of exceptions only shows questions and omits the answers the matter will not be considered. Hatzfeld v. Walsh, 55 Tex. Civ. App. 573, 120 S. W. 525; Clark v. State, 67 Tex. Cr. R. 38, 148 S. W. 801.

The two questions which were answered, as shown by this bill, present no possible objection.

Bill of exceptions No. 15 states a number of questions and answers, with a general statement of the objection thereto, but without any connecting statement of any fact or facts in the case. The bill is entirely too general for consideration. Howard v. State, 65 Tex. Cr. R. 25, 143 S. W. 178.

Bill of exceptions No. 18 sets out a page of questions and answers to the witness Dr. Holbrook, with the statement that the appellant objected to the question as propounded. We are wholly uninformed as to which question the objection is aimed at, and find nothing of error in the bill.

Bill of exceptions No. 19 complains that in the hypothetical case stated by the prosecuting attorney to the appellant’s witness Dr; Holbrook it was incorrectly stated to said witness that “immediately after she came back, after she had fired the fatal shot, she made the statement, as testified to by Allie Lee or Fred, that she had killed Will Bridges;” to which statement by the prosecution objection was made that no such testimony was in the record and that no witness had so testified. While this was very indefinite, we took the trouble to look through the testimony of Fred Mauney, as set out in the statement of facts, and observe that on page 96 thereof said witness stated, “She came back and gave me the gun. * * * She called up the sheriff, and just said to the sheriff that she had killed Will Bridges.” It thus appears that the hypothetical question was correct and no error is shown.

Bill of exceptions No. 20 complains that the state’s attorney was permitted to “take the witness from defendant’s counsel.” Examination of the same discloses that the court allowed the prosecuting attorney to make the preliminary test of the witness who was offered on the question of the general reputation of the deceased. No abuse of the court’s discretion in such matters is shown.

Bill of exceptions No. 21 quotes at length from a hypothetical case stated to Dr. Gregory, and after finishing the quotation from the question, states that counsel objected to the same because “it did not conform to the statutes of Texas nor to the rules of the courts.” No statute or rule is pointed out to u.s as having been violated. The bill is wholly insufficient.

Bill of exceptions No. 22 objects to the testimony of Luther Romine, the objection, as stated being that the “proper predicate had not been laid.” This is not a statement of any fact showing why the evidence is objectionable and is not sufficient to call for our review. Douglass v. State, 67 Tex. Cr. R. 431, 148 S. W. 1089.

No error appears in bill No. 26, and bill No. 27 consists of several pages' of questions and answers, and concludes with the statement that after this evidence had been introduced defendant’s counsel moved the court to exclude all the testimony of the witness as to what was said by the defendant at the time and from the time of the arrival of the officers, because she was in the custody of the taw and had not been warned, etc. A bill of ixceptions setting out numerous questions and answers, with a general objection to the whole, or a general motion not specific in its statement, such as this here, does not conform to the requisites and should not be considered. Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 67; Link v. State, 73 Tex. Cr. R. 82, 164 S. W. 987. The bill, if in proper condition otherwise, wholly fails to set out any fact or facts which makes the evidence inadmissible, and does not specify ⅛ or make plain any particular matter complained of as being in the testimony of appellant

Bills of exceptions Nos. 28 and 29 complain of the argument of the special prosecutor. Language such as used by him in his statement that “if the jury, under the evidence in this case, cannot convict the defendant, they might as well tear down the courthouse,” and the further statement that if she was convicted they would have the right to go to the Governor and ask him to exercise his pardoning power, is not such as to demand a reversal of the case under the authorities. No written charge was presented by the appellant asking that the jury be instructed not to consider same. The court did then and there verbally instruct the jury not to consider such statements of said prosecuting attorney. Hatchell v. State, 47 Tex. Cr. R. 380, 84 S. W. 234; Pemberton v. State, 55 Tex. Cr. R. 464, 117 S. W. 837; Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 770.

Bill No. 31 raises the question of misconduct on the part of the jury, based on the fact that one juror talked frequently with his wife during the trial of the case without the permission of the court, and in violation of article 748, C. C. P. The language of this article plainly forbids any one being with the jury while they are deliberating on a case and from communicating with a juror after he has been impaneled, except in the presence and by permission of the court, in a felony case; and the officers in charge of juries should be vigilant and careful to see that the provisions of this statute are carefully observed, and that our trials are free from criticism, and are conducted according to law. The trial court before passing upon this matter, heard evidence pro and con bearing on the matter set up in this bill,*and concluded that the matter did not constitute such error as to justify the granting of a new trial. The juror testified that his wife discussed with him only matters concerning the home and the farm, and that she did not mention the case on trial in any way. She testified to the same facts. The sheriff also testified that he heard part of some of the conversations, and that it was about the business at home. We feel that this statutory provision is a wise and just one, and that the interests of both the state and the accused in a fair trial are so great as to demand of officers and jurors an observance of its requirements. Not only should the appearance of evil be avoided by strict observance of this statutory rule forbidding communications with the jury when, the court is not present, but the further fact is true that human nature is frail and prone to excuse itself; and it is easily possible to conceive a case where the party conversing with a juror, as well as the juror himself, fearful of punishment for contempt, might not remember all that passed at such conversations, and might deny mention of the case between them by virtue of a convenient memory.

We think the rule in cases of a violation of the provisions of article 748 ought to be that injury in such Case is presumed unless the contrary is made to appear to the satisfaction of the court; the trial court primarily, and ultimately- this court. Any presumption can be overcome by evidence, and in such case of presumptive injury the burden ought to be on the state to satisfy the court that no injury has resulted from such violation of the statute. In the instant case we think the presumption of injury was met and overcome by the evidence showing what the conversations were, and that no fact bearing on the case was discussed between the juror and his wife.

We observe, however, for the benefit of all parties, that article 749 O. O. P., expressly embraces in a contempt proceeding the juror and any offending person who violates the sacred rights of both the state and the accused; certainly the trial court should strictly enforce these safeguarding statutes.-

Sheriffs and deputies who willfully or negligently disregard them should be held to the same strict account as jurors and outside offenders.

Bills of exceptions Nos. 82 and 38 relate to supposed errors in the charge as to what facts would reduce an unlawful killing to manslaughter, but, inasmuch as appellant was only convicted of this grade of homicide, no error appears.

There was no error in refusing special charge on self-defense, which was substantially the same as the special charge on that subject given at the request of appellant. We confess ourselves unable to find any facts in this record bearing out any theory of self-defense, even had the trial court refused both special charges asked on this subject.

Appellant complains of the verdict as being against the weight of the evidence on the defense of insanity, and asks a reversal for that reason. We do not think this court should reverse cases where the evidence is merely conflicting, and where the defense of insanity is interposed, and the doctors placed on the stand by the accused make their statements that she was insane at the moment of the shooting expressly and repeatedly dependent on the truth of what appellant swore as to her inability to remember the immediate facts of the killing, and further when the accused takes the stand and testifies in detail to all that occurred up to the moment of the shooting and what occurred after the shooting, and says that she is finable to remember only what occurred at the time Of the same, and when Other witnesses, whose testimony was apparently reliable, state that she is sane, we do not feel it proper to disturb the verdict.

We have gone through this record carefully and repeatedly, not content with a general statement as to a large number of the bills of exceptions that they were not sufficient to demand our review. Each has been carefully scrutinized, and finding no reversible error, the judgment of the lower court is affirmed.

On Motion for Rehearing.

Appellant has filed an exhaustive motion for rehearing, in which her counsel have reviewed at length this court’s action upon the several contentions as presented in her bills of exceptions and passed upon by this court in its original hearing of the case. It is urged that we were in error in that opinion in declining to consider the bills of exceptions which were too general to call for a review of the matters presented, and we have again considered each of these matters in the light of this motion.

First, let us observe that it is well settled that a bill of exceptions must be complete within itself, that it must not only show therein what transpired, and what the objection thereto was, but sfich objection must be set out, and "enough facts also must be stated in the bill itself to make the error complained of apparent, without the necessity of this court searching through the entire record to see if perchance there be not something that will sustain the theory of said objection; and hence such bill, if it show the ground of the objection made was that the evidence was immaterial, irrelevant, and prejudicial, will not be considered by us unless it is made to appear from the bill itself why such evidence is not material and relevant and how such evidence is'prejudicial. The re'ason and necessity for some such rule is too apparent to need discussion by us. Could it be expected that an appellate court should have to search through a record containing a hundred pages, as for instance in the instant case, where the statement of facts contains 249 pages, in order to ascertain if there be any theory of the case upon which eviderice might have' some bearing, the only objection to which is that it is immaterial, irrelevant, and prejudicial? Is it not perfectly manifest that the labors of this court would be interminable if such were the practice, and is it not clear that it is the duty of the practitioner to put all those things in his bill and make his error apparent so that this court may therefrom decide the point raised?

Keeping this observation in mind, and as illustrative of' the necessity for such rules, let us notice the first of appellant’s bill of exceptions which it is insisted in the motion we erred in holding to be too general and insufficient to call for our review, which' is bill No. 7. In this bill it is set forth that the prosecuting attorney asked Jack Mauney, a witness for the defendant, a number of questions, which are set out, with their answers, as follows:

“Q. You met Mug English Friday evening in Brashear, didn’t you? A. Yes, sir. Q. Where did you meet him? A. I couldn’t say exactly where I met him; I met him all over the place. Q. It rained a little that evening, didn’t it? A. I don’t remember whether it did or not; didn’t rain much, if it did. Q. You and he were in the lumber shed, weren’t you? A. In the lumber yard, I think; we were not in the shed at all. Q. How long did you stay there? A. Two or three minutes.”

It is then stated that said evidence at the time it was offered was .objected to by the defendant because it was irrelevant, immaterial, incompetent, and prejudicial to the rights of the defendant, which objections were by the court overruled and the defendant excepts.

As stated above, this court held the bill thus stated in such condition as not to merit our consideration, and we can see now no error in our former ruling. It is impossible to tell which question and which answer were objectionable, nor is there any statement of how any of the questions could have prejudiced appellant, nor is there one thing in the bill from which this court might obtain any light in striving to decide whether the answer to this or that question was competent or material. We might easily conjecture many hypotheses on which such evidence might be very material, and on the other hand, we might conjecture hypotheses which might render such evidence immaterial. But it is clear that none of these hypotheses, and nothing upon which we can base them, appear in the bill itself.

Appellant next insists in said motion that we should have considered her bill of exception No. 10, which we declined in the original opinion to consider because same was too general. Said bill is as follows:

“Be it remembered that upon the trial of the above entitled and numbered cause, that while Allie Lee Mauney, a witness for the defendant, was testifying before the court and jury upon cross-examination by the state, the state asked the witness if she was not told while she was before the grand jury last winter, in February, if her attention was not called to the fact that she and Miss Maude had been places and watched by people, and if she was not questioned specifically about she and her sister’s conduct at Pleasant Grove schoolhouse one night; was she not questioned in the grand jury about the trip she and Lester Long and her sister and some other young fellows made up to the Pleasant Grove schoolhouse, and if she was not questioned about a song that had been sung in the crowd that night; and the witness answered that she was brought before the grand jury, but that she did not know who had brought her there and didn’t care; that she was questioned something about it, but did not remember that she was questioned about the song. The defendant’s counsel objected to such questions and the testimony at the time it was offered, because it was immaterial and irrelevant, and defendant was not present, and same was not binding on the defendant and was prejudicial; which objections of the defendant were overruled by the court, and the state’s attorney was permitted to ask the questions and the witness to testify as above stated, to which action and ruling of the court the defendant then and there in open court excepted.”

It will be noted at a glance that there is nothing in this hill as to any surrounding facts, and nothing to show the materiality of the evidence, or how or in what way the same was prejudicial or irrelevant; in fact, nothing but the statement, in substance, as to a number of questions and answers which were purported to have been asked and answered by the witness Allie Lee Mauney before some grand jury some time. The general objection to all of these was that such questions and answers were immaterial, irrelevant, and prejudicial; that appellant was not present and same are not binding on her.

It is not clear how defendant’s counsel expects this court to determine from the bill what merit there is in such objections; certainly, we are unable to find anything therein that would disclose lack of materiality, or the absence of relevancy, or the presence of anything to prejudice the case. The mere fact that, as stated, what occurred was in the absence of appellant does not affect the same. There are innumerable instances where predicates are laid and evidence introduced as to what occurred and was said by witnesses and others out of the presence of the accused, and we do not suppose that it will be necesary to instance such cases. This is sufficient to call attention to the fact that the objections made and set out in this bill of exceptions are not such as to make it necessary for this court to violate the plain rules of practice, and to search through this entire record to try to find some way in which this evidence was objectionable.

Deference to the earnest insistence of counsel for appellant might lead us to consider one by one again the bills which our original investigation lead us to conclude were insufficient, but it would unnecessarily prolong this opinion to do so. The bills which we have set out sufficiently show how well-founded were our conclusions, and we are constrained to believe that no good could result from an individual review of each ground of such former opinion. We believe from the record that the appellant has had a fair trial and that no reversible error is shown therein.

The motion for rehearing is overruled. 
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