
    PEREA v. STATE.
    (No. 5907.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1920.
    Rehearing Denied Jan. 26, 1921.)
    1. Criminal law <&wkey;l090(7) — Refusal of continuance not reviewed in absence of bill of exception.
    Refusal of continuance will not be reviewed in absence of bill of exception complaining thereof.
    2. Criminal law <&wkey;365(I) — 'Testimony as to killing of deceased’s companion at about the same time and place admissible.
    Testimony as to the killing of a companion of the deceased at about the same time and place held admissible.
    3. Criminal law &wkey;365(i), 369(15), 371 (I)— Testimony as to other crime admissible as res gestee or to show identity or intent.
    When one crime becomes a part of the res gestae of another, or tends to shed light on the intent or to connect the accused with the offense for which he is on trial, proof of the other crime is admissible.
    4. Witnesses &wkey;>248(2) — Question calling for irresponsive answer as to defendant’s sanity properly excluded.
    In homicide prosecution, question “Now as to his [defendant’s] behavior after that accident, at times • did you notice that, or remark that, or call it strange, or did you think anything of it?” held properly excluded; the expected answer that defendant was crazy and not responsible at times not being responsive to the question.
    5. Homicide <@=3194 — Testimony as to illicit relations between deceased and man killed by defendant held inadmissible.
    In homicide prosecution, where the defendant did not claim to have any knowledge regarding any illicit relations between deceased and man killed by defendant immediately prior to deceased’s death, and did not claim to have been influenced in killing deceased by any such illicit relationship, testimony as to such illicit relations held inadmissible as against contention that it would .shed light on how defendant viewed threats made by deceased immediately before defendant killed her.
    6. Homicide <@=3 179-— Exclusion of testimony that syphilis frequently caused insanity held proper.
    In homicide prosecution defended on the ground of insanity, where defendant’s father, his employers, his friends, and a number of physicians testified without expressing the opinion that defendant had at any time been insane, and where an expert physician, upon a full statement of the facts, including the fact that for some time prior to the homicide defendant had been afflicted with syphliis, declined to state that in his opinion the defendant was insane, exclusion of testimony that syphilis frequently caused insanity held proper.
    7. Homicide <&wkey;237 — Defendant must prove insanity by preponderance of evidence.
    In homicide prosecution defended on the ground of insanity, the defendant was required to prove by a preponderance of the testimony that the act charged was done by him while insane.
    8. Homicide <&wkey;l63(l) — Testimony as to defendant’s reputation inadmissible where he admitted the crime.
    Where defendant admitted the killing and the appropriation of deceased’s property, exclusion of testimony as to his reputation for honesty and fair dealing held not error.
    9. Criminal law <&wkey;>llll(3) — Court’s explanation in approving bill of exceptions considered as correct.
    The Court of Criminal Appeals will consider the lower court’s explanation in approving a bill of exceptions as correct, unless in some legitimate way appellant then made his objection to such explanation, or shows that he was deprived of his right or opportunity to do so.
    10. Homicide <&wkey;339 — Exclusion of testimony as to defendant having shotgun harmless in view of defendant’s admission.
    Where defefidant admitted killing deceased with a shotgun exclusion of testimony as to statement of defendant’s mother that defendant had shotgun, if error, was harmless.
    11. Criminal law <@=3| 159(3) — Verdict of properly instructed jury on conflicting evidence conclusive.
    Verdict of properly instructed jury on conflicting evidence is conclusive on appeal.
    On Motion for Rehearing.
    12. Criminal law <@=1091 (5) — Bill of exceptions to exclusion of answer must show what answer would have been.
    A bill of exceptions to the refusal to permit an answer must show what the.answer would have been, and a ground of exception that the appellant could have shown by other questions along the same line, etc., is too indefinite.
    13 Homicide <@=3244(1) — Evidence held to sustain conviction as against plea of self-defense.
    In homicide prosecution in which defendant claimed to have acted in self-defense, evidence held to sustain conviction.
    14. Homicide <@=3327 — Rules of practice the same as in case involving claims of other felony.
    The rules of practice are the same in a. capital case as in a case involving the commission of any other felony, and in a murder prosecution defendant should take his bill of exceptions to the overruling of application for continuance.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Jose Perea was convicted of murder, and he appeals.
    Affirmed.
    O. M. Wilchar and Claude Lawrence, both of El Paso, for appellant. .
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the Thirty-Eourth district court of El Paso county of the murder of one Maria Ramhack, alias Maria Gutierez, alias Maria Manzano, and his punishment fixed at death.

Complaint is made in appellant’s brief of the overruling of his motion for continuance. Examining the record, we find that no bill of exception appears therein to the court’s action in overruling said application. This is necessary. Branch’s Ann. P. C. § 304; Vernon’s C. C. P. pp. 529, 530; Wilson v. State, 223 S. W. 217, decided at this term.

By several bills of exception, complaint is made that the facts surrounding the killing of one Manuel Sanchez and the finding of his body were admitted in evidence upon this trial. It appears from the record that Manuel Sanchez, deceased, and appellant left El Paso together on a hunting expedition on February 13, 1920. Appellant returned alone .the next day, and proceeded to possess himself of the property of both Sanchez and deceased, and to make statements as to what had become of said parties. Being suspected some weeks later, appellant confessed that he killed both parties, and took officers to the place of the homicide, where he pointed out where Sanchez and the woman were buried, and helped exhume the bodies of his two victims. Upoh his trial he was charged with the murder alone of the woman, and was questioned as to the details of the dual killings, which took place in close proximity both as to time and place. We think the rule is that when one crime becomes a part of the res geste of another, or tends to shed light on the intent in the instant case, or to connect the accused with the offense for which he is on trial, proof of same is admissible. Branch’s Ann. P. C. § 166.

The father of appellant, when testifying for the defense, was asked: “Now, as to his behavior after that accident, at times did you notice that, or remark that, or call it strange, or did you think anything of it?” The state’s objection to any answer to this was properly sustained. It is stated in the bill that the answer expected was that the defendant was crazy at times, and not responsible at times, after he had received a certain blow on his head some years before this homicide. We see nothing in said question calling for such answer. In the statement of facts it appears that this witness testified that after appellant received this blow witness noticed a change; that appellant seemed more quiet than before, and that at times he seemed more so. This would appear to fully answer the various inquiries contained in the above query. That which is stated to be the expected answer of the witness appears to us to be in no wise responsive to the question objected to. This witness was not asked, nor did he state, his belief in the insanity of the appellant at any time.

A number of questions were asked by appellant, the evident purpose of which was to reflect upon the relations between deceased and the young man, Manuel Sanchez,'who was killed by appellant upon the same occasion. Objections to all this were sustained. Appellant avers that he desired this evidence to shed light on how he viewed the threats which he testified were made to him by deceased immediately preceding her being killed. Appellant testified that after reaching their hunting camp he and Sanchez went out after game, and while out that he killed Sanchez, and that after he returned to camp the woman kept asking where Sanchez was, and that when the latter did not return she drew a pistol and made threats against him, and that he shot her, fearing an attack with said pistol. He did not claim that he had any knowledge or belief regarding any illicit relations, if any, between the woman and Sanchez, nor was such matter referred to in any way by any of the parties on the day of the homicide, nor did he claim that he was influenced to kill the woman by any such facts in any way. We are unable to see the relevancy of such testimony. The trial court charged the jury on self-defense against any attack, or threatened attack, on the part of deceased, with a pistol, as well as manslaughter, caused by sudden passion arising from any cause.

The defense of insanity was set up. We have carefully examined the record with special reference to this point. Appellant’s father, also his employers for many years before and down to the date of the homicide and after same, together with several physicians and some of appellant’s friends, testified as witnesses in his behalf. Not one of them even expressed the opinion that at the time of the homicide or at any other time he was insane, or did not know right from wrong, or that it was wrong to kill. An expert physician, upon ,a full statement of the facts as m'ade by the evidence, including the fact that for an unknown time prior to the homicide appellant, had been afflicted with syphilis, declined to state that in his opinion the accused was insane. This doctor said he had personally, examined and talked to the defendant, and that his answers were very rational; that there was nothing in what he had learned himself about the defendant, nor in the hypothetical case stated to him, that would lead him to think there was any such mental derangement as that the accused did not know right from wrong. The burden is on the accused to show by a preponderance of the testimony that the act charged was done by him in an insane state. In the condition of this record, as above indicated, we think there was no error in the action of the trial court in refusing to allow certain witnesses to state that syphilis frequently causes insanity.

No error appears in the refusal of the trial court to allow a witness to testify to the reputation of the accused for honesty and fair dealing. While it is true that the state, as a part of its proof, showed appropriations by the accused of the property of the deceased after she was killed, still, when appellant took the stand, he admitted both the killing and the appropriation of the property. No issue was thus left upon which the rejected testimony shed any light.

Complaint is made of the refusal of the court to allow answers to certain questions. The court approved this bill, with the explanation that while he did then sustain the objection he later admitted the testimony. This statement of the court is in no way controverted. As thus explained, the bill shows no error. Our practice is to consider as correct the court’s explanation in approving a bill of exceptions, unless in some legitimate way appellant then made his objection to such explanation, or shows that he was deprived of his right or opportunity to do so.

Objection was made to the statement of the officer Stansel to the effect that the mother of appellant told him that appellant had a shotgun. It appeared that both deceased and Sanchez were killed by being shot with a shotgun. Appellant testified on his trial that he killed both of them by shooting them with a shotgun. The error, if any, in the admission of the mother’s statement, was thus rendered harmless. It also appears that no objection was made to the testimony of Officer Stansel when given.

We have examined appellant’s other bills of exception and considered each of them, as well as the evidence, in this case, in the light of all that appears in the record and the extreme penalty imposed by the jury, but are unable to conclude that any error appears.

At the scene of the homicide undergarments were found, and appellant told the officers that these were the garments of deceased, and that he had forcible connection with her before he killed her. After committing this fearful crime, he seems to have gone back to El Paso, and told a tissue of falsehoods as to where deceased and Sanchez were, and the next day took possession of the woman’s household goods and had them moved from place to place into rooms rented by him. Also, by falge representation, he obtained the woman’s car from the garage, and appropriated it. He went back to the same place he worked before he got leave of absence when he started on this trip, and worked there three weeks before he was arrested. While his associates and employers bore witness to his good reputation, none of them claimed for him insanity, and from the testimony no other conclusion was possible than that he killed the woman, and the jury did not believe his story that it was in self-defense. The trial court is to be congratulated upon giving to the jury the law of each issue raised. This would obviate the necessity for many reversals.

All the issues having been fairly submitted to the jury, their settlement of the conflicts in the evidence against the accused is decisive.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant insists that we erred in overruling his sixth assignment of error. What is denominated in the brief of appellant as the sixth assignment of error consists of a statement that the trial court constantly excluded all testimony as to illicit relations between Maria Ramhack and Manuel Sanchez, both of whom were killed by appellant on the day of the homicide for which he was on trial. Said assignment groups bills of exceptions 4, 6, and 26 as containing the rulings so objected to. An examination of said bill of exceptions No. 4 shows it appears to have been taken to the court’s refusal to allow a woman named Baca to answer why she did not visit the home of Maria Ramhack. What her answer would have been to said questions is not set out in the bill of exceptions, and the ground of exception, as stated, is that appellant believed that had said question, and others along the same line, been permitted and answered, he could have shown that the dead man and woman were lovers. We have stated enough of said bill to make it manifest that the same was not sufficient to show error on the part of the trial court. A bill of exceptions to the refusal to permit an answer must show what the answer would have been, and a ground of exception that the appellant could have shown by other questions along the same line, etc., is too indefinite.

In the bill of exceptions No. 5 it appears that the court refused to allow a witness to answer a question as to whether deceased, Sanchez, stayed over at the house of the dead woman a good deal. In urging the admissibility of this question upon the trial court, appellant expressly stated that he was not asking as to the relations of the man and woman.

Examining the twenty-sixth bill of exceptions, we find it contains several pages Of questions and answers, propounded both by the state and appellant; it being stated at the threshold of said bill that the jury had been retired before this examination was had. It is not shown by said bill that this testimony was offered in the presence of the jury, and many of the questions and their answers as set out in the record of said proceedings would have been objectionable if made in the presence of the jury. It is stated in the concluding portion of the bill that all evidence of the defendant as to the relationship of the said parties was excluded, and the statement of the exception is as follows:

‘‘The defendant then and there excepted to the ruling of the court and tendered this his bill of exceptions, etc.”

In his approval of this bill the trial court stated that, when the jury returned and appellant testified, he was permitted to testify to the relations between said deceased parties, and as to his belief as to said relations, and the effect of such relations and his belief concerning same on his mind and actions. The bill was accepted and filed as so qualified and shows no error. We have reviewed this matter at some length, inasmuch as it has been much stressed in said motion, and the punishment inflicted by the jury was the extreme penalty of the law. Appellant testified in detail as to all the words and actions of the deceased, Maria Ramhack, just prior to the firing of the fatal shot by him, and if the jury had credited his story in any way their verdict would have likely been different. We have again carefully examined his evidence and are unable to find in same anything which would indicate that the jury were not justified in believing it the fabrication of one who found himself enmeshed in the consequences of a grave crime.

We do not think we erred in any other matter set forth in said motion. The rules of practice are the same in a capital ease as in any other felony, and the accused should take his bill of exceptions to the overruling of his application for continuance and should as substantially present his defense in a capital ease as in any other.

We have given to each ground of said motion careful consideration, but are unable to conclude that our former opinion was erroneous; and said motion will be overruled. 
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