
    TEAGUE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 8, 1912.
    
    Rehearing Denied June 5, 1912.)
    1. Criminal Law (§ 1090) — Appeal and Error — Necessity of Bill of Exceptions.
    A court on appeal from a criminal prosecution cannot review the refusal of a continuance where no bill of exceptions was reserved, even though the judgment recited that a continuance was refused, and the defendant excepted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2663, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 1090) — Appeai>-Neces-sity of Bill of Exceptions.
    On appeal from a criminal prosecution, the court will not review the overruling of a mo-' tion to quash the jury venire, where there was no bill of exceptions thereto in the record, even though the duly acknowledged motions to quash were shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2663, 2789; Dec. Dig. § 1090.]
    3. Criminal Law (§ 1090) — Appeal—Necessity of Bill of Exceptions.
    On an appeal from a criminal prosecution, that the defendant was required to exhaust peremptory challenges on jurors whom the court held’ to be qualified, but whom the defendant did not think qualified, or that the defendant should have been granted additional peremptory challenges, were unavailable for review in the absence of bills of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789; Dee. Dig. § 1090.]
    4. Criminal Law (§ 1090) — Appeal—Necessity of Bill of Exceptions.
    Grounds in a motion for a new trial in a criminal cause that the court erred in admitting and excluding evidence will not be considered on appeal, where there was no bill of exceptions thereto in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822; Dec. Dig. § 1090.]
    5. Criminal Law (§ 954) — New Trial — Grounds — S deficiency.
    A ground in a motion for a new trial in a prosecution for homicide that the court erred “in its charge to the jury, especially in reference to insanity and drunkenness,” etc., is insufficient for its generality to present possible error in the charge on insanity and drunkenness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 234, 2363-2367; Dec. Dig. § 954.]
    6. Criminal Law (§ 964) — New Trial — Reservation of Grounds — Sufficiency.
    A ground of motion for a new trial in a prosecution for homicide, which charges that the court erred “in its charge to the jury * * * in failing to submit manslaughter,” is insufficient because of its generality.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 234, 2363-2367; Dec. Dig. § 954.]
    7. Homicide (§ 48) — Degree of Offense-Manslaughter.
    That an accused in a prosecution for homicide had been told of certain acts of the deceased toward the accused’s sister tending to show improper relations would not reduce the degree of the offense to manslaughter where he himself in his conversations imputed a want of chastity in such sister.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 72; Dec. Dig. § 48.]
    8. Homicide (§ 253) — Evidence.
    In a prosecution for murder, evidence held to sustain a verdict of murder in the first degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. § 253.]
    9. Criminal Law (§§ 1090, 1064) — Appeal and Error — Necessity of Bill of Exceptions.
    Alleged improper remarks of a district attorney cannot be considered by a court on appeal from a conviction for murder, where they are not verified by a bill of exceptions, and the motion for a new trial does not state what the remarks were that were objected to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789; Dec. Dig. §§ 1090, 1064.]
    10. Criminal Law (§ 954) — Motion for New Trial — Generality of Objection.
    Where, in a prosecution for homicide, there were 17 special charges requested, 2 of which were given by the court, a ground in a motion for a new trial that the court erred “in refusing the several special charges” requested by defendant is too general.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 234, 2363-2367; Dec. Dig. § 954.]
    Davidson, P. J., dissenting in part.
    Appeal from District Court, Travis County; George Calhoun, Judge.
    John Teague was convicted of murder in the first degree, and appeals.
    Affirmed.
    Warren W. Moore, J. D. Moore, and Dickens & Dickens, all of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. ■
    
      
      For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder, convicted of murder in the first degree, and his punishment assessed at imprisonment for life.

1. In his motion for new trial appellant complains of the action of the court in overruling his application for a continuance. It has been held by this court that a recital in the judgment that a continuance was refused, and that defendant excepted, will not supply the place of a specific bill of exceptions, and that, if no bill of exceptions is reserved, we will not pass on the question. Gaston v. State, 11 Tex. App. 143; Prator v. State, 15 Tex. App. 363; Bowman v. State, 40 Tex. 8; Taylor v. State, 14 Tex. App. 340, and cases cited in section 645, White’s Ann. Proc.

2. The next ground is that the court erred in overruling defendant’s motion to quash the jury venire. There is no bill of exceptions in the record. It is true there are in the record three motions to, quash the special venire, sworn to by defendant, but no evidence was introduced to sustain the grounds alleged in the motion in so far as this record discloses. There being no bills of exception reserved to the action of the court in overruling them, it is not presented in a way we would be authorized to review the matter. In the case of Sharp v. State, 6 Tex. App. 657, this court held: “There are, however, other grounds set out in the motion. One is that the court erred in overruling the defendant’s motion for a continuance; another is that the court erred in refusing to set aside the special venire. These matters will only be inquired into, on appeal, on_proper hills of exception; and, finding none such, we are not permitted, under settled rules of practice, to consider them in determining the merits of this appeal.” This decision has been followed in an unbroken line of decisions from that day until to-day.

3. Neither can we consider the grounds alleging that appellant was required to exhaust peremptory challenges on jurors whom the court held to be qualified but whom the defendant did not think qualified, nor the ground complaining that he should have been granted additional peremptory challenges, there being no bills of exception in the record.

4. The grounds in the motion reading that the court erred in admitting and excluding evidence, as shown by bills of exception from No. - to No. -, cannot be considered, there being no bills of exception in the record. Section 1123, White’s Ann. Code of Criminal Procedure.

5. The eighth ground is that the court erred “in its charge to the jury, especially in reference to insanity and drunkenness, etc., and in failing to submit manslaughter.” It is seen that this points out no error in the charge on insanity and drunkenness, and is therefore insufficient to present any matter for review. Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730. By reference to the charge we find that the court did not submit the issue of manslaughter. However, it has been held by this court that such reference is too general a reference to be considered on appeal. In the case of Mansfield v. State, 138 S. W. 591, this court held, in an opinion by Presiding Judge Davidson: “Appellant contends, in a general way, that the court erred in not charging the law of manslaughter. The exception in the record presenting this matter is found in the motion for new trial in the following language: ‘The court should have charged on manslaughter.’ This is found at the close of the second paragraph of the motion for new trial, and then in the third ground of the motion it is stated the court should have given a correct charge to the jury, as raised by the testimony of defendant, concerning the alleged insulting note which was carried to defendant’s wifé by deceased Thomas, knowledge of which was conveyed to defendant on the evening before the homicide, and which, if believed by the jury, would reduce the homicide to manslaughter. The extract from the ground of the motion is not sufficient to present the failure of the court to charge on manslaughter. It is too general. See Joseph v. State [59 Tex. Cr. R. 82] 127 S. W. 171.” Luster v. State, 141 S. W. 214.

In this case it may be said there is some evidence that would tend to raise that issue. Deceased had married appellant’s oldest sister, and a younger sister, about 19 years of age, was residing with them. Appellant’s wife went to the home of deceased, and learned that his (deceased’s) wife was away from home, and' the younger girl was keeping house for deceased. Appellant’s wife says while she was there she saw deceased “chuck” the girl in the side, and they went in the buggy house; that the circumstance to her was suspicious, and, upon returning home, she told appellant about the wife of deceased being absent, and she thought he ought to take Myrtle (the young girl) away from the home of deceased, which appellant said he would do. She says she did not tell appellant what she saw take place until Saturday night following, the night he killed deceased. Appellant says his wife told him on Friday night, and he went to the home of deceased to get his sister to move to some other place, and while talking with his sister deceased drew a pistol on him, when he rode away. If he was told of this conduct on Friday, he saw deceased twice on Saturday before he killed him, being in deceased’s saloon on Saturday evening and at his home. If it was on Saturday night when his wife gave him the details, it would be on the first meeting, and her testimony is the evidence that slightly raises the issue of manslaughter. However, appellant’s sister denies emphatically that any such thing took place, and deceased’s wife (appellant’s older sister) testifies that some time prior to this appellant came to her home and asked her, “Where’s all the whores,” and, when she asked him whom he was talking about, appellant replied Myrtle and Delia. Appellant does not deny thus referring to Myrtle, and, if that is the estimate he placed on his own sister and the way he referred to her prior to the killing, certainly his wife telling him that his brother-in-law had “chucked her in the side,” and gone into the buggy house with her, could not be said to be adequate cause to reduce the offense to manslaughter. In the case of Redmond v. State, 52 Tex. Cr. R. 596, 108 S. W. 365, it was held by this court: “It is not slander or insult to a female relative in contemplation of the statute that authorizes the reduction of homicide to manslaughter where the appellant knows the statement upon which he acts to be true.” Thus, if appellant’s estimate of his sister was that she was a “whore,” statements made to him of suspicious circumstances from which one might infer that such person had an opportunity to have sexual intercourse with her would not reduce the grade of offense to manslaughter. The complaint being in such general terms, and the evidence being that appellant referred to her in such terms prior to the homicide, we, perhaps, should not consider it at all, but, if we do consider it, it would not present reversible error, ror article 723 provides that, unless the error is such that it injured appellant, it would not be ground for reversal.

6.The next ground of the motion complains that the evidence is insufficient to support the verdict of murder in the first degree. The evidence for the state would show that appellant on the night of the killing was walking on Fifth street with his wife and baby, having a Winchester rifle in his hands. When asked what he was going to do with the gun, he said he was going to kill a son of a gun, and then remarked he was joking. He procured a hack, and told the driver he wanted to go to South Austin, taking the gun in the hack with him. When asked about the gun he said he had been out hunting. When Mr. Molesworth asked where to drive to, he told him, “You drive until I tell you to stop. I will tell you when I get to the place.” The witness says defendant told him he had had trouble with his brother-in-law, and was going to kill him, and “I’ve got a gun to do it with.” Witness says he drove by deceased’s place of business, and, after doing so, appellant had him turn back, and, after turning back, appellant got out, and told him to take his wife to a hotel, saying-he was going to attend to that business by himself. Those in Mr. Gest’s (deceased’s) place of business say that Mr. Gest was sitting with his hands in front of him when a shot was fired from the outside, some saying that just prior to the first shot, and others just after the first shot, appellant or some one said, “Gome out here, John.” At the first shot deceased fell, the shot striking him in the left side; that appellant then came in the building and shot deceased twice more, once in the left side of t'he neck, and then in the hip. After shooting Gest three times, he fired at the bartender, who dodged behind the counter. Appellant came to where he could see the bartender, and said, “Gome out of here, you Son of a bitch.” Something attracted appellant’s attention, and the bartender jumped out of the door and ran, appellant firing at him twice as he ran off. It is shown that appellant and deceased had ill will towards each other, and such feeling was of long standing. We think the evidence for the state, when taken as a whole, fully sustains the verdict.

Appellant’s theory was that he went to see deceased about his sister; that deceased had drawn a pistol on him that evening, and he carried his Winchester because of that fact; that, when he went to the saloon, he said, “Gome out here, John, I want to see you,” when deceased made a move as if to draw a weapon and he fired. All the other eyewitnesses say that deceased made no demonstration, but was sitting down, talking, at the time the first shot was fired. The court presented in a very favorable light to appellant the issue of self-defense, and gave the instructions requested by.-appellant on that theory of the case.

7. The two grounds in appellant’s motion for a new trial complaining of the remarks of the district attorney cannot be considered. They are not verified by any bill of exceptions, and in the motion for a new trial it is not stated what the remarks were that were objected to. So nothing is presented to us for review. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108, and cases collated in subdivision 3 of section 776, White’s Ann. Proc.

8. The only other ground is that the court erred “in refusing the several special charges requested by defendant.” There were 17 special charges requested, 2 of which were given by the court. This reference to them is too general to bring any question before us for review. Ryan v. State, 142 S. W. 878, and cases there cited.

The judgment is affirmed.

DAVIDSON, P. J.

I have followed the rule in the Joseph Oase. I believe, where manslaughter is raised by the facts and law not thereto applied at all, a general exception to a failure to charge on that issue is sufficient. The rule might be different where the issue is charged upon, but not fully. In the latter case special exception should state reasons. At some time I will write more fully.  