
    THOMPSON v. STATE.
    (No. 8723.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    Rehearing Denied June 23, 1926.)
    1. Witnesses <&wkey;268(l) — Refusal to permit cross-examination of state’s witness as to whether he knew of former trial, at which he was not present, held not error.
    Refusal to permit cross-examination of state’s witness as to whether he knew of former trial, at which he was not present, held not error, in absence of suggestion that he concealed facts, or that facts had since arisen reflecting unfavorably on his failure to appear and testify.
    2. Criminal law &wkey;>l I66'/2(I2).
    Court’s remark that he thought holding of Court of Criminal Appeals was incorrect held not reversible error, under Code Or. Proc. 1911, art. 787, where bill of exceptions showed no testimony to which remark could apply, and jury were properly admonished and instructed to disregard remark.
    3. Criminal law <&wkey;>ii66(4(!2).
    Remarks of trial judge, reflecting on opinions of Court of Criminal Appeals will not be permitted to work reversal, unless prejudice to defendant’s rights resulted.
    4. Criminal law <&wkey;f 1661/2(12).
    Any error in threat to fine defendant’s counsel for contempt, if he made further reference to Court of Criminal Appeals’ holding on former appeal, held cured by charge to disregard it.
    5. Criminal law 1166*/2 < 12) — Error in ordering defendant’s counsel to jail for contempt out of presence of jury held not prejudicial to accused as reflecting on counsel’s character or standing, especially where defendant was not deprived of his presence and assistance.
    Ordering defendant’s counsel to jail out of jury’s presence for contempt in taking bills of exception, after being directed to take his seat, held not reversible error as reflecting on his honor, integrity, character, or standing, nor as depriving defendant of his presence and assistance, where court recessed at such point, and counsel was present when trial was resumed on next day, and proceeded during remainder thereof.
    6. Criminal law &wkey;>I09l(5).
    Bill of exceptions showing court’s direction to witness to detail things on which she based conclusion of insanity, qualified by statement that testimony expected was not disclosed, held, not to show erroneous exclusion of answers.
    7. Criminal law <&wkey;1170(4)— Refusal to permit witness to state opinion that defendant was “insane” held not material error, where he stated that he thought defendant was “crazy.”
    Where witness stated that he thought defendant was “crazy,” refusal to allow him to state opinion that defendant was “insane” was not material error; “insane” people being ordinarily spoken of as “crazy,” and vice versa.
    [Ed. Note. — For other definitions, see Words and Phrases, First Series, Crazy; Insane — Insanity.]
    8. Criminal law t@=489.
    That witness, testifying that he thought accused crazy, was required to testify on cross-examination that he never filed any such complaint against defendant held, immaterial.
    9. Criminal law <&wkey;>683(3) — Admission of letter from accused to deceased, on rehuttal, over objections of immateriality, irrelevancy, and merger in prior written contract, held not erroneous, where it may have been offered, so far as bill of exceptions showed, to rebut defense of insanity.
    Letter from accused and his wife to deceased held properly admitted on state’s rebuttal in murder trial as against objections that it was immaterial, irrelevant, and merged in subsequent written contract already in evidence, where it may have been offered, so far as bill of exceptions disclosed, to rebut contention that defendant was insane.
    10. Criminal law &wkey;s486.
    Testimony as to defendant’s connection with kangaroo court in jail held admissible as predicate for testimony as to his insanity.
    11. Criminal law &wkey;>486.
    Testimony of witness, giving opinion that defendant was sane, as to what occurred between them on occasion before homicide, when he went to defendant’s house to arrest him, held admissible.
    12. Criminal law <&wkey;723(l), 730(14).
    In murder trial, argument of state’s counsel, “How are you going to get him in the asylum?” held not objectionable as'attempt to influence jury to return verdict against their conviction on issue of insanity, and, in any event, not harmful, in view of court’s prompt admonition to jury.
    13. Criminal law <&wkey;730(l).
    Improper argument of state’s counsel will not work reversal, unless of such prejudicial character that instruction to jury to disregard it appears ineffectual to protect rights of accused.
    On Motion for Rehearing.
    14. Criminal law >&wkey;729, 730(8).
    Evidence of defendant’s insanity held not so strong as to render improper argument not to acquit on such ground incurable by withdrawal and instruction to disregard it.
    15. Criminal law &wkey;>33l.
    Burden is on defendant to prove defense ot insanity to satisfaction of jury by preponderance of testimony.
    Morrow, P. J., dissenting in part.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    J. C. Thompson was convicted of murder, and he appeals.
    Affirmed.
    James P. Cogdell, of Raymondville, and Collins, Dupree & Crenshaw, of Hillsboro, for appellant.
    Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Hill county of murder, and his punishment fixed at 20 years in the penitentiary.

This is the second appeal in this ease. See 96 Tex. Cr. R. 87, 256 S. W. 279. The facts are sufficiently stated in the former opinion.

On this trial a witness for the state admitted on cross-examination that he had not been present or given testimony at the former trial. Defense counsel asked him if he knew, at the time the case was on trial, that it was so being tried. The state objected that this was not material. To the court’s action in sustaining such objection exception was reserved. No error appears. No suggestion is made that the witness at any time concealed from proper inquiry the facts known to him, as appears in the Rice Case, 51 Tex. Cr. R. 255, 103 S. W. 1157, or that facts had arisen since the former trial which might reflect unfavorably upon his failure to appear and give testimony, as was the case in Dina v. State, 46 Tex. Cr. R. 402, 78 S. W. 229, which cases are cited in appellant’s brief. The fact alone that one knew something about a case, and that he was not called to testify, would not affect his credibility when called at a later trial.

Mrs. Hattie Baldwin, widow of deceased, and sister of appellant, was a defense witness on the question of insanity. It is shown that she testified to many incidents upon which she based her conclusion that appellant was insane at the time of the homicide. On cross-examination she was asked relative to each incident so named by her, and admitted that she had seen sane people do these things. On redirect examination she said that she did not predicate her opinion that appellant was insane on any single incident, but on all of them. Defense counsel then asked her as follows:

“Q. I will get you to state what the facts are with reference to whether or not your opinion, in part at least, is based upon June’s manner and demeanor and conduct at the time these various things happened, or whether it is based alone on the instances which you have detailed,”

—to which she replied:

“I think it is based on those things — that special one as well as any other.”

At this point state’s counsel said:

“It is improper for counsel to suggest to witness pertinent predicates for an opinion on insanity. The proper way is to ask the witness to detail everything they have in mind.”

Whereupon defense counsel made the following statement:

“That is the very question which Mr. Frazier raised before, and the very question which was 'passed on by the Court of Criminal Appeals in sustaining the assignment as to Mrs. Winn’s testimony. They held Mr. Frazier was incorrect about it.”

In reference thereto, the learned trial court made this remark:

“I think the .Court of Criminal Appeals was very incorrect, but we will have to bow to their ruling.”

Exception was taken to this remark of the court, and article 787 of our C. C. P.; Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 8 A. L. R. 1096; Wallace v. State, 44 Tex. Cr. R. 300, 70 S. W. 756, 100 Am. St. Rep. 855; Davis v. State, 65 Tex. Cr. R. 271, 143 S. W. 1161; and Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 97, 69 L. R. A. 193, are cited as supporting appellant’s contention. We think none of them do in fact support it. If the remark of the court related to any testimony, it'was that given by Mrs. Winn at a former trial, and it is not shown by said bill of exceptions that at any time during this trial Mrs. Winn gave testimony to which such remark could have application. This court does not permit its decisions to be affected by remarks, however uncalled for, which may be made regarding its opinions in connection with trials in the layer court, unless such remarks be made at such time and in such manner as that the rights of tl}e defendant on trial are, or may have been, affected thereby. All the eases cited show comments of the court upon questions of fact or law pertinent to the testimony on issues material to the case then on trial. We do not think this the effect of the remark made by the court here objected to. We also note that in charging the jury the court below instructed them not to consider his remark, and further told them that declarations of the Court of Criminal Appeals constituted the supreme and correct law of this state in criminal cases.

What we have just said applies in large measure to bill of exceptions No. 4, wherein is set out the fact that the learned trial judge told defendant’s attorney that he would fine him for contempt, if he made further reference to what the Court of Criminal Appeals had held. We learn from the bill, which sets out the same matter as the bill just discussed, that a question had been asked and answered, and that, after such answer had been given, a statement was made by state’s counsel in the nature of an objection, to which appellant’s counsel replied by reference to what the Court of Criminal Appeals had said in regard to this upon a former appeal of this case, asserting that the same question asked and answered by the witness was held admissible by the appellate court on the former appeal, in reference to another witness than the one now on the stand. There was nothing before the court. No motion had been made to have the testimony given by -the witness withdrawn. The making of an objection to an answer already given amounts to nothing. There was no occasion for the discussion of the remarks of the trial court with reference to the Court of Criminal Appeals. Appellant’s counsel was not discussing the holding of the Court of Criminal Appeals with reference to any matter of offered testimony, for the witness had already answered the question. We are not inclined to believe the remark of the judge could be held by us, under the circumstances, to have prevented appellant’s counsel from properly discussing or referring to the opinions of this court. As the matter is presented, our only concern is whether the acts and ruling of the court could or might have been reasonably calculated to cause injury to the rights of appellant. We do not think so. We might further remark that the supposed difference between defense counsel and the court was not over a matter from which the jury could have believed or imputed any reflection upon the character, integrity, or honor of said counsel. His standing as an attorney was not thereby attacked or affected. The argument was about a point of practice not really material at the time, and it is not impossible that the zeal of appellant’s counsel in contending for his position to the extent of eliciting in the presence of the jury a threat from the court to place him in jail for contempt might have favorably impressed the jury. In any event, the special charge given instructing the jury not to pay any attention to what the court may have said to counsel, and .withdrawing the remark, and further telling them that what was said by the Court of Criminal Appeals was the supreme and correct law in criminal cases, would seem to obviate any possible evil effect.

Bill No. 5 recites tbe. same matters as are set out in the two preceding bills, and further that defense counsel, persisting in the taking of bills of exception after being directed to take his seat by the court, was fined $25, and the sheriff directed to take counsel to jail; it appearing that the judgment and order of the court were entered out of the presence of the jury. Our views in regard to the legality of the judgment of contempt appear in Ex parte Crenshaw, 96 Tex. Cr. R. 654, 259 S. W. 587, 31 A. L. R. 1181, and in line with what we. there said we further refer to 2 Bishop on Crim. Law (9th Ed.) § 252, wherein are found statements to the effect that no person should be molested by the judge for doing respectfully anything in the presence of the trial court which he has a right to do, and that the mere fact that an attorney for a party before the court persists in addressing the court while a witness is' being examined, though admonished to desist; does not constitute contempt. The pith of the exception under discussion at this time is that ordering appellant’s counsel to jail for contempt under the circumstances constituted such improper censure and disparagement of said attorney by the trial court as should vitiate the verdict in this case. The proposition is not free from trouble, and the authorities found are not very satisfactory. Appellant cites Robertson v. State, 38 Tex. 187; House v. State, 42 Tex. Cr. R. 125, 57 S. W. 825; Echols v. State, 75 Tex. Cr. R. 369, 170 S. W. 786; Waters v. State, 80 Tex. Cr. R. 573, 192 S. W. 778; State v. Davis, 284 Mo. 695, 225 S. W. 707; and Warren v. State, 96 Tex. Cr. R. 627, 259 S. W. 575. We cannot bring ourselves in agreement with the opinion of Judge Ogden in the case first named wherein the court’s opinion seems to proceed on the theory that to reverse the case would be the proper way to punish the trial court for his wrongful acts. For contempt committed during that trial, appellant’s counsel were imprisoned after the trial was over, and after they had filed motion for new trial. They were brought from jail, and ordered by the court to argue said motion for new trial. They took an exception, but whether to being brought out to argue the motion, or being required to argue it, or because they were not given time or opportunity to prepare to argue it, does not appear. It seems to us that the only real question involved was, Were the rights of the accused in the case affected by the court’s conduct, which question does not appear to have been considered at all in rendering the opinion. The House Case, supra, was reversed for the acts of the court in denying to the jury the right to examine demonstrative evidence, and the opinion sheds no light on the issues here. In Echols Case, supra, it appears that appellant’s counsel had persisted in ignoring the rulings of the court, and that the court lost his temper, and made hasty remarks such as often follow when that is the case, but the matter was held not sufficient ground for reversal. In Waters Case, supra, what was said by the trial court was deemed a reflection on the credibility of a witness to such an extent as was deemed a violation of the forbiddance of article 787, C. C. P. In the Davis Case, supra, the language of the court to appellant’s counsel was held to impute to him a purposeful delay of the trial by resorting to improper methods, and was deemed sufficient to affect his integrity as an attorney. In Warren’s Case, supra, the court used language held to be a comment on the weight of the evidence. These do not appear to us analogous cases to the one now before us. We also note that in Dallas, etc., Ry. Co. v. McAllister, 41 Tex. Civ. App. 131, 99 S. W. 933, the manner and tone of the court in reprimanding counsel, coupled with what he said, were held to constitute such reflection on counsel as to prejudice his case with the jury. The statement of the court was held to put before the jury the fact that counsel had violated an agreement made in open court. Nothing in the bill under discussion shows that the manner or tone of the court’s statement was not courteous. After the colloquy as to the opinion of the Court of Criminal Appeals, the court directed defense counsel to take his seat, and, upon his refusing, ordered him to jail. Defense counsel continued to address the court, and wa« told again not to speak to the court under penalty of fine. The court further said in that connection that he had asked counsel kindly to be seated. We have carefully sifted and analyzed this matter as best we can, and are unable to find anything that reflects upon the honor, integrity, character, or standing of appellant’s counsel. He was merely insisting on his right to state his exception, and the court was insisting that counsel could have his bill, but that he must be seated, and, upon counsel declining, to be seated, and insisting on making statements to the court, the court announced that he would punish counsel for contempt. In this matter, in the Crenshaw Case, supra, we indicated in our opinion that counsel for appellant was legally in the right. We cannot however, bring ourselves to believe that the error of the court in the matter was such as to require a reversal of this case. It appears that at the point indicated in the proceedings the court below recessed, and, when the case was taken up again the next morning, counsel, who had been fined, was present, and proceeded during the remainder of the trial. It cannot be said that appellant was deprived of the presence and assistance of said counsel, and there was nothing in the application for a continuance which was presented to the court immediately after lie adjudged ■said counsel guilty of contempt.

Appellant’s bill of exceptions No. 7 fails to show a refusal of the court below to let the witness answer certain questions therein set out, but, on the contrary, presents plain direction to the witness to detail those things on which she based her conclusion that appellant was insane. A qualification to the bill further states that nothing was told the court’ as to what testimony was expected from this witness in answer to such questions.

We do not think the action of the court below in holding that a witness who had detailed what occurred between him and appellant, and who further stated in that connection that from what was said and done he thought appellant to be crazy and wanted to get away from him, was materially erroneous in declining' to allow the witness to state his opinion in so many words that appellant was insane. In ordinary language we speak of insane people as crazy, and vice versa, and we are of opinion that the statement of the witness that he thought appellant to be crazy sufficiently set forth his belief that in his opinion he was insane. ■

Bill of exceptions No. 12 sets forth that the witness last referred to, having testified that he thought appellant crazy, was asked! and required to .ansiwer on cross-examination that he had never filed any complaint against appellant for being crazy. We do not regard the objection made to this, as of any materiality.

In bill of exceptions No. 13 appears the objection to a certain letter offered by the state in rebuttal; the objection being that it was immaterial and irrelevant, and because it was written prior to a written contract already in evidence, it being asserted that the letter was merged into the contract. The letter was signed by appellant and his wife, and addressed to’ the deceased, and, as far as we can tell from the bill, may have been offered as a circumstance shedding light on appellant’s mental condition.

The testimony of the sheriff and deputy sheriffs with regard to appellant’s connection with the kangaroo court which had been carried on in the jail, and of which he was the judge, might be admissible as forming the basis for the opinion of said witnesses on the question of appellant’s insanity. The bills are qualified with the statement that they formed part of the predicate for the admission of the testimony of said witness along this line. Nor do we deem it objectionable that a witness for the state, who gave it as his opinion that appellant was sane, was allowed to testify to what occurred between him and appellant on an occasion prior to the homicide when he went to appellant’s house to arrest him and had a struggle with him over a pistol.

There are three bills of exception to the argument of state’s counsel. Bill No. 23 sets out at some length an argument which was not excepted to in full, but an exception was taken to a statement contained in said argument, which is as follows: “How are you going to get him in the asylum?” it being contended that this constituted an attempt to influence the jury to return a verdict against their conviction in regard to the question of insanity, on the theory that, if the jury turned him loose, no other jury could get him in the asylum. We do not think this particular statement subject to the objection thus , made, and the question, “How are you going to get him in the asylum?” which is stated by counsel for appellant to be only part of the argument set out of which complaint is made, does not seem to us to contain any matter necessarily injurious to the rights of the accused.

The argument complained of in bill No. 21 is much like that appearing in the Weige Case, 81 Tex. Cr. R. 479, 196 S. W. 524, though not quite as objectionable. The Weige Case was reversed for several errors. The trial court in that case refused to instruct the jury not to consider the argument deemed objectionable, and, as stated in the opinion, the evidence supporting the insanity theory being strong, the argument was said by .us to be open to the complaint directed thereat. In the case now before us we do not so regard the evidence of insanity, and also we observe that the court in this case, viewing the matter differently from what the court below did in Weige’s Case, suprá, instructed the jury promptly not to consider the argument, and in such case it is deemed unlikely by us that the argument was harmful. Complaints of arguments must always be appraised in the light of the facts in a particular case. A statement which might call for reversal in one case might not be so regarded in another on different facts; To demand a reversal, the argument must not only be improper, but such as, under the particular facts, was calculated to injure the rights of the accused, and this injury must be such as that an instruction to the jury not to consider the argument would appear ineffectual in the accomplishment of that object. Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695, and authorities cited. The instant case is readily distinguishable from the Weige Casé, supra, in the matter of the cogency of the evidence supporting the issue of insanity, and also because of the prompt action of the trial court in suppressing the argument and instructing the jury not to consider it, in view of which distinguishing characteristics we think ourselves not called on to reverse because of anything said in the Weige Case. What we have just said about the matter complained of in bill of exceptions No. 21 applies equally to a similar argument complained of in bill No. 22, wherein it appears that the court also sustained the objection and instructed the jury not to consider the argument. Mr. Branch on page 204 of his Annotated P. O. cites many authorities supporting the proposition that, unless the remarks of state’s counsel are obviously of a nature to impair the rights of defendant or to improperly prejudice his case before the jury, such remarks, though improper, -will .not be considered sufficient for reversal, unless a charge instructing the jury to disregard them was asked and refused, and an exception reserved.

Binding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

The only matter raised in appellant’s motion for rehearing which has given us concern is our decision with reference to the argument of the private prosecutor complained of in bills of exception Nos. 21 and 22. If it be conceded that said. argument was erroneous, it must be borne in mind that the trial court instructed the jury not to consider same; also that the purpose of said argument was to induce the jury not to acquit on the ground of insanity. Examination of the record reveals the fact that the testimony in support of the theory of insanity appears to fall -far short of that cogency which would seem to call for a judgment favorable to such issue. Some twenty witnesses who had known appellant many years, and some of them all of his life, testified to his sanity. He was a married man and appears to have transacted business in usual ways during, if not all, his life. On the other hand, three of appellant’s sisters testified that he was not of sound mind; also three other witnesses, the latter basing their opinions on apparently slight facts; also a doctor, who had sat on a jury composed of six doctors at a time when appellant was charged with another offense, and when there was no opposition to having him declared insane, testified that in his opinion appellant was insane.

We do not trench on the jury’s province to pass on fact issues, but are citing these matters as pertinent to the well-established rule that, where improper argument is resorted to, but is withdrawn, or the court instructs the jury not to consider same, ordinarily the injury has been cured, and it will only be held reversible error by this court, when, under the circumstances of the case, it does not appear legally possible that the injurious effect of the argument referred to could have been removed by the withdrawal or instruction. The burden is on one charged with crime to satisfy the jury by a preponderance of the testimony that he is insane, if such be the defense, and, when the testimony in support of that theory appears such as to make it altogether unlikely that the jury would have accepted such a plea, we feel justified in taking into consideration such fact in determining whether, in spite of the court’s instruction, the argument complained of brought about a verdict different from that which otherwise would have resulted. We are not able to conclude under the facts 'of this case that the error of said argument was so serious as that it could not be cured by its withdrawal.

The motion for rehearing will be overruled.

MORROW, P. J.

I do not concur in the disposition of bills of exception 21 and 22, but do not care to write in the case. 
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