
    COATES v. STATE.
    (No. 4790.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.
    On Motion for Rehearing, May 29, 1918.)
    1. Criminal Daw <&wkey;'517(l) — EVIDENCE—CONFESSION.
    In a prosecution for murder, defendant’s written confession, stating fairly well the facts of the case as proved by the witnesses as to most of the incidents in connection with the homicide and matters loading up to it, taken in compliance with the statute, was properly admitted.
    3. CRIMINAL Law &wkey;>1092(13) — Appeal — Bill of -Exceptions — Venue.
    A bill of exceptions to overruling of motion to change the venue must be, in accordance with Code 'Or. Proc. 1911, art. 634, providing that the order of the judge granting or refusing change of venue shall not be revised upon ap.peal lurilees ’the iacts on whieli ’the same was Rased ¡are presented in a -bill 'Of 'exceptions prepared, -signed, approved, and 'filed at the term of .the i eourt -at "which such order was made, and •a bill, :the statement of facts being in question and .answer form, signed by the county attorney, but mot by -counsel for defendant, and not approved by the court, is mot ¡a compliance with 'the statute.
    :3. Homicide &wkey;294(2) — Instruction—Insan-UTY FROM 'INTOXICATION.
    ■In a prosecution for murder, ithe -charge that .i'f -defendant .was .so drunk he was-unable to ■understand the nature -and quality of the act, •and .know the -same .was wrong, the jury might consider such temporary insanity in mitigation of the penalty, ,u connection with -the charge on insanity, covered every .phase of the issue .as to condition of .mind from the recent use of intoxicants. _
    ■4. 'Griminal ¡Law <&wkey;lT69(0> — Aebeal—Cube ■os’ Ebboe.
    _Any error tin .admitting .defendant’s written confession -.was cured by 'the charge, more favorable than the ia.w accorded defendant, that no .act .of .his .or statement .made by him or confession of his -was sufficient in law to warrant .his.conviction, etc., unless .corroborated by other legal and competent evidence.
    :5. Homicide cs&wkey;309(3) — Instruction—Man--SL'AUGHTBR.
    'The refusal -of a charge that 'if 'defendant’s ,mind .was enraged with reference .to the conduct ■ of the girl lie .killed, and the ¡killing occurred -.while his miad -was so enraged, they should consider .it a ground for manslaughter, was not er¡ror, .in view of evidence which failed to show .such ■ condition of mind.
    16. Homhcide -i&wkey;290 — Instruction — Use of \Weabon.
    If defendant’s «weapon was used so as to •show .an evident intention to kill .deceased, and there is sao evidence that such was not defendant's intention, it is not error to fail to charge ,on -.Code ¡Or. Ptooc. 1911, art. 1147, providing that the instrument whereby .a homieide is committed is ,to be .considered in judging the intent, and that, if the instrument is not likely to produce death, it is not to be presumed death •was .designed, unless the .intention appeal's from ¡the .manner «f use.
    
      H. Criminal Law i&wkey;59t>(7) — Continuance— Absent \Witne-ss.
    In .a prosecution for murder, the court properly overruled defendant's application for continuance to procure testimony of an absent witness by whom he -expected “to prove that he was present on the night of the killing and saw defendant immediately after the killing, and would testify that defendant was insane at the time,” the statement being too general.
    8. ¡Criminal Law .@=»1091(4) — Bill of Exceptions — Indefiniteness.
    Defendant’s bill of exceptions to the refusal to exclude testimony that on the night of the killing defendant had had a fight, etc., was too indefinite for consideration, merely showing objection to the question which elicited the testimony, sustaining of objection, and denial of motion to exclude, etc.
    9. Criminal Law <&wkey;1091(5) — Appeal — Bill of Exceptions.
    Defendant’s bill of exceptions reciting that while a witness was testifying defendant’s counsel propounded to him a question set out, to which objection was sustained, was too meager.
    10. Cbiminal Law &wkey;>1169(5) — Appeal — Habmless Ereob.
    Defendant’s bill of exceptions to testimony of a witness that he went with defendant under arrest to the scene of the killing, etc., elicited by a question which the state finally withdrew after objection, did not present reversible error.
    11. Cbiminal Law &wkey;486 — Testimony as to Sanity — Conduct in Jail.
    A physician’s testimony as to defendant’s sanity, based on observation of and conversation with defendant while in jail, was admissible whether defendant was warned or not as to use of the physician’s testimony against him, such testimony not being of criminative character in connection with the case on trial.
    On Motion for Rehearing.
    12. Cbiminal Law <&wkey;1098 — Appeal — Bill of Exceptions — Venue—Statute.
    Statement of facts introduced on motion for change of venue, attached to the statement of facts on appeal at the first portion, was not such statement of facts as is required by Code Civ. Proe. 1911, art. 634, in a bill of exceptions to ruling on motion to change the venue.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Rufus Coates was convicted of murder, and he appeals.
    Affirmed.
    Turner, Cummings & Doyle, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the murder of Zella Faulk.

Appellant made a confession in writing while under arrest which he contends, in a bill of exceptions, should not have been admitted because not in compliance with the statute. We have examined the confession, and cannot agree with appellant’s contention. We hold, therefore, there was no error in admitting this confession. The confession states fairly well the facts of the case as proved by the witnesses as to most of the incidents in connection with the homieide and matters leading to it. It appears from the evidence that appellant had been going with the girl, perhaps engaged to her, and they had been having illicit relations. On the night of the homicide for some time they were not together. He was seeking her about the city of Ft. Worth, and finally, while at a certain house, he ascertained her whereabouts, and went to the place, and another party was in company with her. From there they went some distance, she being drunk. Without going into details of what occurred, among other things he says he ascertained from her that she had intercourse with another party for which she received $5; that he then determined to kill her. Going with the girl and another party he secured an axe, and in going by a house for some purpose he changed his mind with reference to the axe and left it. He and the girl separated from the other party. He took her into the Trinity bottom, near the river, and while she was sitting upon the ground he got a stick or limb from a tree about Sy2 or 4 feet long, and about 3 inches in diameter, and struck her three blows, two on the head and one across the breast, near where the throat and body join. She fell over. He felt her pulse and came to the conclusion she was dead and left. He went to the residence of Clyde Tucker, and informed him of what he had done, and also informed Aubrey of the same facts. Aubrey went to bed and Tucker and appellant went back to where the girl was, and upon reaching that point discovered that she was still breathing. He says at Tucker’s suggestion that as he had fatally hurt her, and she could not get well, he might as well finish the job, and that he used a knife with a blade three and one-half inches long with which he cut her throat from ear to ear, and then fled the country. He was captured in a distant state and brought back. Upon his trial he was awarded the death penalty. It would serve no practical purpose to go further into the details of this transaction.

Appellant made a motion to change the venue, which was overruled. Tho bill of exceptions sets out the testimony, or part of it, with the exhibit of newspapers attached. The evidence set out in this bill is signed by the county attorney, but not by counsel for appellant nor approved by the court. The testimony, with the exception of the attached newspaper articles, is also set out in question and answer form. In order to have a bill of exceptions with reference to this matter considered it must be in accordance with the statute, which is article 631, Revised O. G. P. 1911. It provides that the order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in bill of exceptions prepared, signed, approved, and filed at the term of the court at which such order was made. This statute has been construed in a great number of cases which will be found collated in 2 Vernon’s Grim. Proc.' p. 342. This bill of exceptions clearly is not in conformity to our law.

There were several charges asked by appellant, some of which were given and some refused. Exception was reserved to the court’s charge on insanity, especially with reference to the condition of the mind from the recent use of intoxicants. At the request of appellant, however, the court gave this charge:

“On the issue of temporary insanity produced by voluntary use of ardent spirits, I charge you that if you find and believe from the evidence that at the time of the homicide the defendant was so drunk that he was unable to understand the nature and quality of the act and to know the same was wrong, then you may consider such temporary insanity in mitigation of the penalty in this case, and it will be your duty to thereby mitigate his penalty, if any, as you may see fit and proper.”

This charge, taken in connection with the court’s charge on insanity, covered every phase of that issue.

Exception was also reserved to the court’s charge in regard to appellant’s confession. The court, however, gave a charge upon this at the request of appellant. This charge is as follows:

“I instruct you that no act of the defendant or statement made by him, or confession of his, is sufficient in law to warrant his conviction, as the law provides that no defendant shall be convicted upon his confession alone, but that the same must be corroborated by other legal and competent evidence, which, when taken in connection with such confession, shows his guilt of the offense of murder beyond a reasonable doubt. And in this connection I further charge you that such corroboration is not sufficient if it merely shows that the offense of murder of Zella Faulk was committed by some one, but it must of itself, and independent of the defendant’s confession, show first that such confession is true; and, second, that it must of itself, and independent of such confession, tend to connect the defendant with tho offense of the murder of Zella Faulk. And if-you do not so find in this case, it will be your duty to acquit the defendant.”

The giving of this charge at the request of appellant would cure any real or supposed error on the part of the court. This charge as given was more favorable than the law accorded appellant with reference to this question ; therefore no error was committed in this matter.

The. court, at the request of appellant, gave this further charge:

“That if you find and believe from the evidence that at the time the defendant made the confession introduced in evidence to W. R. Parker he was laboring under such a defect of reason as to not understand the nature and quality of his act, then you will not consider the same for any purpose in this case.”

The following charge was also given at appellant’s request:

“I instruct you that the law requires that, before a confession can be considered in evidence, it must appear that the same was freely and voluntarily made by defendant, that he was properly warned and cautioned before making tho same, that any such statement would be used against him upon the trial of this case by the person to whom such confession, if any, was made, and that he understood such warning before he made such confession. Now, unless you find these facts to ho true you will not consider such confession for any purpose, or if from the evidence before you you have a reasonable doubt as to either of such facts, then it will be your duty to' exclude such confession from your consideration.”

It is also contended that the court should have given a charge more full in its language with reference to the question of manslaughter, and especially should he have charged the jury that if appellant’s mind was enraged with reference.to the conduct of the girl that night, and the killing occurred while his mind was so enraged, they should consider this as a ground for manslaughter. The court gave a charge upon manslaughter. We are of opinion there was no error in refusing this charge, and in fact we are of opinion that manslaughter was not in the case. The facts do not show that his mind was in such condition as contended, not only by the testimony, but by his confession. There may be a case where a party might have the benefit of manslaughter where Ms betrothed has been guilty of such conduct as to enrage lier lover; but tbis record does not show such a state of case nor do the attendant facts and circumstances so show. He states that he made up his mind to kill her, secured an axe for that purpose,- ehang-his mind, took her off to the woods for quite a distance and away from the city in the river bottom, and procured a bludgeon 3% or 4 feet long, struck her three blows, and these are shown by the testimony to have been fatal. He went away and returned in company with Clyde Tucker. Finding her breathing, he took Tucker’s knife with a blade 3V> inches long and cut her throat from ear to ear. This does not, in our opinion, raise the issue of manslaughter under the facts.

An exception was reserved to the charge also on the ground that it did not charge the provisions of article 1147 as found in Mr. Branch’s Ann. P. C. p. 1179. This reads as follows:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent’ of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears.”

It would seem from this, under the authorities, that if the evidence shows that the weapon or means used by the slayer were, without controversy, a deadly one, and that he intended to kill, it would-be error to 'charge the jury that the instrument or means by which the homicide was committed is to be taken into consideration in judging of the intent of the accused. This would be a presumption of law against the defendant, and wherever that is the case the charge should not ordinarily be given. See Branch’s Ann. P. C. § 2099, for collation of authorities. This statute should be given in charge usually where there is an issue as to the deadly-character of the weapon in committing the homicide and where the intention does not evidently appear. If the weapon used is used in such manner as to show an evident intention to kill the deceased, and there is no evidence that such was not his intention, it is not error to fail to charge on this statute. This seems to be borne out by the authorities. See Ford v. State, 64 Tex. Cr. R. 14, 142 S. W. 6; Baker v. State, 81 S. W. 1215, and cases there cited.

The court properly overruled the application for a continuance. The only witness who was absent was Woolwine. By that witness, the bill states, he expected “to prove that he was present on the night of the killing, and saw defendant immediately after the killing, and would testify that defendant was insane at said time.” This is too general a statement. It sets out no fact, but only a general conclusion that the witness would so swear.

-The bill of exceptions with reference to the motion to quash the venire served upon him is too indefinite for consideration. It does not show wherein the motion to quash was sustained in any way, and there was nothing offered to show that the motion should be sustained.

Bill No. 4 recites;

“While the witness A. C. Donohoe was upon the stand and being examined as a witness on behalf of defendant, on said application, defendant’s counsel propounded to witness the following question: T will ask you if in your opinion the people out there in that community (North Ft. Worth) have not already prejudged this case — got their minds made up ?’ ”

The witness would have answered in the affirmative. In the absence of a motion for change of venue and the meagerness of this bill, we are unable to say how it could have had any bearing upon the question then under consideration before the trial court.

Another bill recites that while the witness McBride was testifying he was questioned by the county attorney as follows:

“Q. This defendant, Rufus Coates, is the man you were talking to that night and the man you saw with this girl (Zella Faulk)? A. Yes, sir; that night he had had a fight, and had a little skinned place on his eye, or he told me he had a fight that night. Mr. Cummings: I object to that. The Court: Sustain the objection. Mr. Cummings: And what he told him, I move to exclude that evidence. Mr. Spoonts: Statement' of the defendant, corroboration. The Court: I will give you a bill, Mr. Cummings. Mr. Cummings: We except. The ground I object to it on, it is injurious and prejudicial; not relating to the homicide in question; having no bearings or relation to it save to prejudice the defendant’s case before the jury.” t

These exceptions, were overruled. Just what connection this had with the case is not manifested by this bill. When and where defendant may have had a fight, or stated he had a fight, is not shown by the bill of exceptions, or what connection it had with the killing of the girl. The bill is too indefinite for consideration.

Another bill recites that while the witness McBride was testifying defendant’s counsel propounded to him the following question:

“You didn’t think that was her home when you took her up there? A. I didn’t know. Q. You were taking a girl that was drunk and having spells around and hunting for Rufus Coates in the nighttime, hunting for a man you didn’t know? Mr. Spoonts: He didn’t say she was drunk. We object to that. The Court: Sustain the objection. Mr. Cummings: Note our exception.”

What the object and purpose of offering this testimony was is not shown, or what connection it had with the case. The bill is too-meager.

Another bill recites while John Connelly was on the stand one of counsel for the state asked him:

“Now, after, the defendant was arrested in this case and brought to Ft. Worth, I will ask you to state to the jury whether or not you went in company with him. and any one else to the scene of the killing. A. Yes, sir; I did. Q. I will ask you to state whether or not he directed the way through the woods to the scene of the killing. Mr. Cummings: He was under arrest at that time. A. Yes, sir. Mr. Cummings: We object to any statement or act of the defendant while under arrest. The Court: Objection overruled. Mr. .Cummings: Note our exception. We object to anv statement by the defendant at this time because he was under arrest, and because the evidence does not show that at that time he Was duly warned or cautioned as required by law; and, further, that the statute requires that any statement or act of the defendant in the nature of a confession must be in writing, and before making the same the defendant must be' properly cautioned as required by law. Mr. Parker: He showed where the place was, pointed it out, and it is a matter of corroboration. Whereupon the state withdrew the question.”

As this matter is presented, we do not think it presents reversible error. The bill is very indefinite, and from the matter sought to be elicited it seems that the defendant went in company with witness to the scene of the killing, and it is stated he was under arrest. Just how this came about, or what induced it, is not shown. ’We do not believe there is enough merit in this matter to require serious consideration, in view of the fact that the matter was withdrawn from the jury.

Another bill recites that while Dr. McLean was on the stand he was asked by one of state’s counsel if he had ever previously seen the defendant. Being answered in the affirmative, he was asked when and where he saw him, and he stated four or five days ago in jail. Objections were urged to this by appellant’s counsel that he could not use any statement made by defendant whilei in jail as a basis for an opinion with reference to insanity, and counsel for the state then stated it was with reference to insanity, and he was taken there to jail for that purpose, referring to witness. The court remarked:

“Is he going to testify as to statements?”

Counsel for the state said:

“He asked the boy questions. The Court: Sustain the objection.”

The assistant county attorney then asked:

“Doctor, at that time did you talk to him and observe him and examine him with reference to his mental condition? Mr. Cummings: The objection goes to this also, your honor. The Court: On the same grounds? Mr. Cummings: Yes, sir. The Court: I overrule the objection. Mr. Cummings: We except. The witness answered: I talked to him about 45 minutes.”

He was then asked by state’s counsel:

“Did you make any. physical examination of him in any way? A. Yes, sir. Q. From the observation that you there made— Mr. Cummings: Our objection goes to all this without renewing it each time. Counsel for State: I will ask you to state to the jury whether or not in your opinion, from your observation you had with him and the examination you made of the defendant, whether or not in your opinion he is a degenerate? Same objection, same ruling, and exception. A. I do not consider him a degenerate.”

Then came a hypothetical question to the doctor by the state, and the answer was:

“This particular man that I talked to I would regard him as having been sane; I mean sane at the time— Mr. Cummings: .Same objection, same ruling, and exception. Answer of witness continued: There was not evidence in anything he told me that would indicate he was insane prior to the killing or subsequent. Mr. Cummings: For the purpose of determining the admissibility of this: You are basing opinion al- . together on what you saw and what he told you in jail? A. On his talk and his chain of thought and the way he related circumstances. Q. And that occurred there while he was in jail under arrest? A. Yes, sir; that is the only time I have ever seen him. State’s Counsel: In this conversation he didn’t detail to you in any way anything about this crime? A. No, sir; I didn’t ask him about i.t. The Court; I overrule the objection. Mr. Cummings: We except.”

This is the entire bill, and we are of opinion error is not shown. The rule is announced in Mr. Branch’s Ann. P. O. p. 18, as follows:

“Proof of statements and acts made and done while defendant is in confinement or custody, and which is not of a criminative character, in connection with the ease on trial, is admissible on the issue of insanity, whether the defendant be warned or not.” Burt Case, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330.

Mr. Branch collates quite a number of au- , thorities.

There are two bills reserved to argument of counsel, some of the objectionable parts of the statements were withdrawn by the court, and the jury instructed to disregard them. The others remained before the jury. We deem it unnecessary to discuss these matters, believing there is no sufficient reason shown why the judgment should be reversed. They are brought fairly within the rule laid down in Thomas v. State, 33 Tex. Cr. R. 608, 28 S. W. 534. See Branch’s Ann. P. C. p. 209, for collation of cases.

We have not deemed it necessary to go into a detailed statement of. the evidence. The record is very full in detail and rather voluminous. It may be seriously questioned whether or not the details of ,¿ horrible crime as this should be perpetuated in our jurisprudence. The trial court and jury, we think, were justified in holding the testimony sufficient as viewed from the light of this record. We have stated enough to show that the killing was one of unusual note in deliberation and atrocity.

The judgment will be affirmed.

PRENDERGAST, J., absent

On Motion for Rehearing.

DAVIDSON, P. J.

At a former day of this term the judgment herein was affirmed. Appellant has filed a motion for rehearing, ■ complaining of the opinion in several respects: First, he says the court was in error in not reversing the judgment because of the failure to obtain a change of venue. The motion to change veiuse was not considered, as shown by the original opinion, because the statement of facts was not approved by the judge nor signed by counsel for appellant, and further, because the statement of facts in the purported bill of exceptions was in question and answer form. Appellant refers to the fact that attached to the statement of facts, and at the first portion thereof, is a statement of facts introduced upon the motion for change of venue, and all of the facts as shown by said statements of facts, and that said Statement of facts was duly signed by counsel for the state and counsel for appellant, and approved by the court on September 29, 1917. There is some testimony with reference to change of venue in the statement of facts. The statement of facts at its termination is signed as stated by counsel and approved by the judge. The evidence in the statement of facts with relation to the change of venue was not reserved in a bill of exceptions as required by the statute, and therefore is not noticed. The statute is imperative, and has always been so held that in order to have a motion for change of venue considered a bill of exceptions must be reserved and the evidence set out in the bill of exceptions. It is not sufficient to set out testimony in a statement of facts, but the evidence must be reserved in a bill of exceptions. This is demanded by the statute, and has always been so held. There is nothing stated to show that appellant was placed in such condition that he could not obtain a statement of facts in a bill of exceptions or a proper bill containing the evidence. Therefore there is no question that the bill of exceptions could have contained a statement of the facts approved by the judge. What purports to be a bill is not approved by the judge, and it is not sufficient to include the evidence in a general statement of facts. There is no sufficient reason why the court should reconsider this case upon that ground or grant a rehearing.

Complaint also is made that the court was in error in not sustaining appellant’s proposition that the charge on manslaughter was not sufficient. We hardly deem it necessary to review this matter, but refer to the original opinion for a statement of the condition of the record as to the facts in this connection. The case of Lane v. State, 29 Tex. App. 310; 15 S. W. 827. cited by appellant, •does not seem to be in point, and it is therefore deemed unnecessary to review that case in connection with this record.

We deem it unnecessary to review or discuss other questions. We are of opinion that the judgment affirming the case was correct.

The motion for rehearing will be overruled. 
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