
    BROUSSARD v. STATE.
    (No. 8675.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.)
    1. Criminal law &wkey;j|09<2(G) — Bills of exception not filed within term time not considered.
    Bills of exception ás to prejudice of jurors or misconduct of jury, not filed until after adjournment of trial term of court, will not be considered. - ,
    2. Homicide <&wkey;l8l —Testimony as to" defendant’s condition shortly after killing, not inadmissible as too remote.
    Testimony of doctor that, when he examined defendant at jail a short time after killing, she appeared quiet and not laboring under excitement, was admissible as against objection that it was too remote; such objection going to weight of testimony rather than its admissibility.
    3. Homicide <&wkey;l8l — Cross-examination of wife, prosecuted for killing husband, as to previous accusations against her of unchastity held proper.
    In prosecution of wife for killing husband, where defense was that husband had called her a whore and knocked her down, and that while in a dazed condition by reason thereof she shot him, held, that state was properly permitted to inquire of wife, who had been married four times previously, whether.her former husbands had not also accused her of being unchaste.
    4. Criminal law <&wkey;>696(2) — No ground for error, where question asked and answered before objection interposed, and no request for withdrawal made.
    Where alleged objectionable question was asked and answered before any objection was interposed, and no request for withdrawal was made, no error can be predicated thereon.
    5. Criminal law <&wkey;396(2) — All of conversation admissible where first adverted to by defendant.
    Under Yernon’s Ann. Code Cr. Proc. 1916, art. 811, where certain conversation, is first adverted to by defendant, all conversation on same subject becomes admissible.
    6. Criminal law <§=^703 — Asking wife, prosecuted for killing husband, whether she stated that husband was Catholic to prejudice jury held not to require reversal.
    Where wife, prosecuted for killing husband, stated one of indignities toward her by husband to have been that he was a Catholic and did not permit her to read her Bible, but took it away from her, held that action of state on cross-examination in calling attention to fact that she had been married by Protestant minister, and asking her if she had not said her husband was a Catholic in hope that some juror might -be prejudiced against Catholics, did not call for reversal.
    
      oilier cases see sanie topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      7. Criminal law <&wkey;>!09l(ll) — Bills of exception in question and answer form, without certificate of trial court, or containing long colloquies between court and counsel, not considered.
    Under Vernon’s Ann. Code Cr. Proc. 1910, art. '846, bills of exceptions which were either entirely in questions and answers, without certificate of approval from trial court, or consisting of long colloquies between counsel and court, will not be considered.
    8. Criminal law <&wkey;449(l) — Admission of testimony of witness residing in apartment below that of scene of homicide that she heard no noise before shot fired held not reversible error.
    Where defendant, prosecuted for killing her husband, defended on ground that he had assaulted her and knocked her down, and that a fight had occurred immediately preceding killing, held, that admission of testimony of tenant, living immediately below defendant, that she had heard no noise before shot was fired which indicated that somebody might be knocking somebody down, was not reversible error.
    9. Criminal law <&wkey;45l(3) — Testimony as to accused’s appearance shortly after killing properly admitted.
    Where defendant, prosecuted for homicide, testified that she was dazed and excited, testimony of officers that shortly after killing defendant appeared to be perfectly cool and calm was properly received as a shorthand rendition of the facts.
    10. Criminal law &wkey;j| 119(2) — Bill of exceptions not considered where unintelligible.
    Where bill showed objection to question, which question of itself is unintelligible, and nothing in bill shows what preceded it or in what connection question was asked, nor. relative to whom it was asked, such bill will not be considered.
    11. Homicide <&wkey;>!74(2) — Testimony that no bruises or scratches found on defendant shortly after killing properly admitted.
    Where defendant was prosecuted for killing her husband, and she and her mother testified that one of things which caused defendant to shoot deceased was that he had assaulted her with his fists and knocked her down, testimony of doctor that he examined defendant shortly after killing and found no bruises or scratches on her was properly admitted.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexeg
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Lillian Broussard was convicted of murder, and she appeals.
    Affirmed/
    Harvey P. Shead, John Mays, and Thos. C. Tripp, all of Port-Worth, for appellant.
    ' R. K. Hanger, Dist. Atty., and W. H. Tol-bert, Asst. Dist. Atty., both of Fort Worth, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst.- State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Defendant is under conviction for myrder growing out of the killing of her. husband, Louis Broussard, by shooting him with a pistol. Punishment is 20 years in the penitentiary.

Defendant and'deceased had been married since December, 1922, residing part of the time in Fort Worth and part of the time in Dallas. The homicide occurred in Fort Worth at an apartment house where defendant and deceased and defendant’s mother were living at the time. No one witnessed the shooting save defendant and her mother. Deceased’s body was found in the hall just outside the apartment door and at the head of the stairway. Just across the hall Mr. and Mrs. West occupied rooms, and immediately under the apartment occupied by defendant and her husband was a room occupied by Miss Sneiderman. It was the state’s theory that deceased had told defendant he did not care to live with her longer because she was not living the kind of life that she should live, in that she was making dates with men and had been disloyal in many ways to 'deceased. Defendant’s contention was that she killed her husband in self-defense. She testified herself and introduced witnesses to show that he had heaped indignities upon her, had tried to compel carnal relations in an unnatural way, had on several occasions assaulted her, and that immediately before she killed him had called her a whore and knocked her down; that while in a dazed condition by reason of such language and blow she obtained a pistol from her trunk and shot him.

Bills of exception Nos. 1 and 2 are not briefed by defendant, "but we have examined them and find they cannot be considered. One relates to alleged prejudice on the part of a juror who served in the case; the other to alleged misconduct on the part of the jury under á claim that they reached a verdict by adding the number of years each j,uror desired to assess as a punishment and dividing it by 12. Evidence was heard upon both matters. The result of the investigation is stated in the qualifications to the respective bills, and justified the court in not sustaining either allegation. Even if this were not true the bills could not be considered, because they were not filed until long after the adjournment of the trial term of court. It has been the uniform holding of this court that bills complaining of such matters must be filed within term time. Branch’s Ann. P. C. § 572; Fowler v. State, 89 Tex. Cr. R. 623, 232 S. W. 515; Salazar v. State, 88 Tex. Cr. R. 209, 225 S. W. 528.

In bills 3 and 5 complaint is made because the state was permitted to prove by Dr. Withers that when he examined defendant at the jail a short time after the shooting she appeared quiet and not laboring under excitement. The objection urged was that the observation was too remote from the time of the homicide to make the evidence admissible. We think the objection goes to the weight of the testimony rather than to its admissibility. The -defendant claimed to have been dazed by the blow struck her by deceased and the language used by him. It was only a short time after the killing when the examination and observations were made upon which the doctor based his statement.

Bills 8, 9, and 10 relate to similar matters and may be discussed together. The defendant was 28 years of age at the time of trial. She had experienced a checkered matrimonial career. Deceased was her fifth husband. Her first husband was named Goodson; he left her two months after marriage. She then married Sampson, lived with him a year; then divorced him. Her next husband was Renfro. She lived with him tlvo years; then divorced him. Her next matrimonial venture was with one BJessing, from whom she secured a divorce in June, 1922„ and in December of the same year married Brous-sard, the deceased, whom she killed in September, 1923. A witness for the state testified that within three minutes after the shot was fired which killed deceased the defendant said, “I shot the damn s — — o a b-; he called me a whore, and . I shot him.” Defendant made no claim to this witness that deceased had struck her, but on the trial testified that deceased called her a whore, knocked her down, and was coming towards her again when she shot him. In bill No. 8 complaint is made that state’s counsel asked defendant on cross-examination if Blessing (one of her former husbands) had not told her she 'was a whore. The bill fails to show what her answer, if any, was. Bill No. 9 shows that she was further asked if Renfro (another husband) upon leaving her had not told her he was leaving because she was a whore and would not live straight. This she answered in the affirmative. She was then asked (bill 10) if Goodson (still another of her husbands) had not told her the same thing. This she answered in the negative. The objection in each instance was that the state was attempting by such questions to put defendant’s character in issue. The state contends that defendant having' testified that deceased’s words and conduct rendered her incapable of cool reflection injected the issue of manslaughter into the case, and it became a matter for the jury to determine the state of defendant’s mind at the time of the killing; hence, that it became proper for the state to make the inquiries complained about as bearing upon this issue.

The state’s evidence shows that defendant, on occasions, used language familiar -to habitues of the underworld and bestowed carnal favors on men other than her husband. If she was unchaste, and had been called a whore by some of the many former husbands it is less likely that her mind would become inflamed by such language from deceased than would such language addressed to a pure woman who had never before been accused of being such a character. We think the inquiry by the state was pertinent upon the issue suggested. It became so by reason of the peculiar facts revealed from the entire record. Bibb v. State, 86 Tex. Cr. R. 112, 215 S. W. 312; Redman v. State, 52 Tex. Cr. R. 591, 108 S. W. 365; Teague v. State, 67 Tex. Cr. R. 41, 148 S. W. 1063; Parker v. State, 86 Tex. Cr. R. 222, 216 S. W. 178.

Bill No. ,13 complains because the state on cross-examination asked defendant the following question: “Didn’t this man Nichol that worked for the Production Company see you take this man frequently in the different offices at night wdth the lights out and stay with him for a long time?” to which she answered, “No I did not.” The question was asked and answered before any objection was interposed, and no request for withdrawal was made. Bill No. 29 recites that over objection the state asked defendant, “If within the last six months the house detective at the Westbrook Hotel did not find you in a room undressed with a man, and put you out of the hotel?” which question she answered in the negative. The state suggests that both bills are subject to the defect that they give none of the surrounding facts, and fail to furnish this court with sufficient information to enable us to pass upon the question presented. Sullivan v. State, 95 Tex. Cr. R. 527, 254 S. W. 966; Smith v. State, 96 Tex. Cr. R. 28, 255 S. W. 617. The bills appear to be subject to the defect urged. Bill No. 29 includes a colloquy between the court and counsel covering more than two pages. This has no place in the bill. When we go to the record it shows that the incidents at the hotel and the Production Company about which inquiry was made of defendant were proven by the state to have occurred. The 'evidence was admissible upon the issue" of manslaughter, and the inquiry of defendant about the incidents was permissible. See discussion of bills 8, 9, and 10.

No error is shown by bill No. 18, in which complaint is made because the state asked defendant if Mr. Ely did not fell her in a conversation with him that he had investigated Louis (deceased), and that he could not find that he had a woman, or that he drank whisky or gambled, which she answered in the negative. The record shows that Ely was an officer in Dallas. Defendant and her husband lived there for a time. She says she suspected her husband of having another woman, and in company with a Mrs. Sadler was watching him. Ely came up to them and inquired what they were doing, and a conversation in which the three tools part was liad about deceased. This meeting with Ely was first introduced by defendant berself on direct examination. Ely testified that after she made the complaints against her husband witness told her he would investigate the matter and report to her the following night, which he did telling her then in substance there was no foundation for her charges; it was with reference to this report from Ely defendant was asked about, which she denied and Ely affirmed. The conversation having been adverted to in the first instance b‘y defendant, all of the conversations upon the same subject became admissible under article 811, O. O. P. See authorities collated in notes under said article in Vernon's Cr. St. 1916, vol. 2. Bills No. 16, 45, 49, and 50 relate to this same matter and present no error.

Bill 20. The statement of facts, and .the qualification to the bill, shows that defendant while testifying in her own behalf swore that she and deceased had been married by a Baptist minister in the city of Port Worth; that she did not know where the minister lived, and had never been to his church until deceased carried her there for the- marriage ceremony. As one of. the indignities toward her by deceased she claimed upon tbe witness stand that he was a Catholic, and would not permit her to, read her Bible, but had taken it away from her and thrown it at her across the room. The "complaint in this bill is because on cross-examination counsel for the state called her attention to the fact that she and deceased had been married by a Protestant minister, and asked her if she did not know that Catholics were not married by Protestant ministers, and further if she had not said in her testimony that her husband was a Catholic in the hope that some man on the jury might be prejudiced against Catholics, and in that way she would derive some benefit from the statement. Defendant answered the question in the negative. The objection urged was tha,t the question was argumentative. In view of .defendant’s testimony shown from the statement of facts and the qualification of the learned trial judge to the bill we find the question propounded not such as' would call for a reversal.

Bills 27, 28, 40, 41, 42, 43, 48, and 54 are either entirely in questions and answers, without any certificate from the trial court directing them to be prepared in such form, or they consist of long colloquies between counsel and the court relative to the propriety of admitting or' excluding evidence. The bills cannot be considered in the condition in which they appear in the record. So prepared they do not comply with article 846, Vernon’s Ann. Code Cr. Proc. 1916. Many authorities condemning bills in this form will be found collated in Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029. See, also, Taylor v. State (Tex. Cr. App.) 265 S. W. 152.

Bill 30. Objection was interposed to a question asked by the state of the witness Miss Sneiderman, if on the morning of the killing she “heard any noise up there that sounded like a fight; like somebody might be knocking somebody down,” the objection being that it called for a conclusion of the witness. 'This,bill, like many others we find in the record, is so meager that it gives little or no information as to what the inquiry was really about, and might be dismissed from consideration on that account. The statement of facts discloses that Miss Sneiderman occupied a room immediately under that in which defendant and her mother claimed a fight had occurred immediately preceding j;he killing in which they averred that deceased knocked defendant down. The building was a frame structure with ordinary floors and walls. Miss Sneiderman testified that at the time the shooting occurred she was sitting in her room downstairs; that although she could hear people w'alking on the floor above her when they were moving .in the room just over her, that she heard no noise or disturbance of any kind before the shot was ‘fired. It was in this connection she said she had heard no noise which indicated that some.body might be knocking some one down. The bill presents no such error as would demand a reversal.

Bills 31 and 32 complain because officers were permitted to testify that shortly after the killing defendant appeared to be perfectly cool and calm; the objection being that it was only the opinion of the witnesses. The officers were phoned for immediately after the killing and went promptly to the place, only four blocks distant. The body of deceased was still in the hall where it had fallen. The observations of defendant by the witnesses were made at that time. In view of her evidence that she was dazed and excited, their testimony to the .effect that her appearance indicated a different state of mind was properly received as a shorthand rendition of the facts. Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202, and cases therein cited.

Bill 33 cannot be considered. It shows objection to a question propounded by counsel for the state which counsel for defendant seems to have construed as an attack upon the reputation of defendant. The question objected to is, “Would you consider her’s good if she lived with him after that?” The question reveals that of itself it is unintelligible. Nothing in the bill shows what preceded it, or in what connection the question was asked, nor relative to whom it was asked. The rule is well known that one complaining of a proceeding must so present the matter in the bill that the question may be determined from the bill itself. Section 207, Branch’s Ann. P. C. Bills 22, 23, and 51 are subject to similar defects.

Bills 35 and 36. The state was well within its rights in offering evidence from Dr. Withers that a short timé after the killing he examined defendant while she was in jail and found no bruises, scratches, cuts, or abrasions of any kind that would indicate she had been struck or knocked down. Defendant and her mother testified that one of the things which caused defendant to shoot deceased was that he had assaulted her with his fists and knocked her down. The testimony of the doctor was pertinent upon that issue.

Bills 6, 7, 17, 24, 26, 34, 38, 39, 47, 52, and 53 have not been discussed, but all have been examined and considered. None of them, in our opinion, show error.

We have thought it unnecessary to discuss at length many of the numerous bills found in the record. The greater part of them relate to matters complained of arising upon cross-examination of defendant. Of necessity this must be determined from viewing the case in its entirety, and especially taking into consideration her evidence on direct examination. We have given attention to all questions which are properly before us for review, and have discovered no errors of sufficient gravity to demand the reversal of the judgment.

An affirmance is therefore ordered.  