
    SODERMAN v. STATE.
    (No. 7411.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.
    Rehearing Denied March 26, 1924.)
    !. Witnesses <@=>53 (4) — Statute forbidding wife to testify against husband d»e$ not prevent her cross-examination where she testifies on his behalf.
    In a prosecution for homicide, in which defendant introduced his wife as a witness, and she testified to their relations during the period of their married life, the inquiry by the state on cross-examination whether she knew that defendant, while on a drunken spree, had a difficulty with his brother-in-law, did not transgress Vernon’s Ann. Code Cr. Proc. 1916, art. 795, forbidding the wife to become a witness against her husband, since such statute does not inhibit her cross-examination when she is introduced as a witness in his behalf.
    2. Witnesses <@=>53 (4) — Cross-examination of wife introduced to testify on behalf of her husband governed by usual tests.
    While Vernon’s Ann. Code Cr. Proc. 1916, art. 795, does not prohibit the cross-examination of a wife who has become a witness on behalf of her husband, such cross-examination must not extend into new subjects, but her opportunity, for observation tending to .show the accuracy of her direct testimony may be inquired into, and the usual test of cross-examination applied to matters germane and pertinent to her direct examination.
    3. Criminal law <@=>1 036(1)— Complaint of admission of evidence not considered on appeal unless properly objected to.
    One cannot complain on appeal of the admission of incompetent evidence to which he did not object when it was introduced.
    4. Criminal law <@=»1144(12) — Court’s ruling sustaining cross-examination presumed correct in absence of proper averments in bill of exceptions.
    Where the bill of exceptions failed to show that an inquiry on cross-examination of a wife who had been introduced to testify on behalf of her husband was foreign to the matter of the direct examination, the presumption was in favor of the correctness of the court’s ruling sustaining such cross-examination.
    5. Witnesses <@==>53(4) — -Cross-examination of defendant’s wife held not foreign to scope of direct examination.
    In a prosecution for homicide, in which defendant’s wife was introduced to testify on his behalf, and testified that at the time she began her illicit relations with deceased- defendant had been sober and successful in business, and that thereafter their relations became strained, inquiries of the state on cross-examination as to whether defendant had told her that decedent and another had robbed him, and that he did not propose to stand for it, were not foreign to the scope of the original examination of the witness.
    <£=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      6. Witnesses <§=>53 (4) — Cross-examination of . defendant’s wife in homicide case held not foreign to direct examination as to illicit relations. with decedent.
    In a prosecution for homicide, in which defendant’s wife was introduced to testify on his behalf, inquiries of the stat.e on cross-examination as to the time when she had told defendant of her illicit relations with decedent, and as to whether defendant’s conduct was not such that she had gone to live with her mother and separated from defendant, were pertinent to her direct examination, wherein she testified to a divorce and several separations from defendant, and the time and manner of imputing to defendant information of her relations with decedent.
    7. Criminal law <@=>419, 420(1), 1169(6) — Testimony of police officer as to declaration of defendant that his wife had confessed illicit relations with deceased held properly excluded.
    In a prosecution for homicide, where defendant proved by a police officer that he had assaulted his wife because she had confessed her infidelity to him, the court did not err in refusing to permit an officer who was with witness to testify as to such statement by defendant, such declaration being hearsay and cumulative of the fact testified to by witness, which was not controverted by any direct proof, and being relevant alone on the issue of manslaughter, upon which the jury found in favor of defendant.
    8. Criminal law <§=>1091 (I I) — Bills of exception in question and answer form held inadequate.
    Bills of exception which were in the form of questions and answers in a criminal case, no reason being given or discoverable for not putting them in narrative form, held inadequate to call any matter in review.
    9. Criminal law <§=>465 — Opinion as to insanity accompanied by no facts held properly excluded.
    In a prosecution for homicide, on the issue of defendant’s sanity the court did not err in excluding the opinion of a witness who detailed no conversations, remarks, act, or demeanor of defendant qualifying him to give such opinion.
    10. Criminal law <§=>675 — No error in excluding testimony of witness which was cumulative of other testimony.
    In a prosecution for homicide, the court did not err in excluding the testimony of a witness which was cumulative of testimony produced by defendant’s wife, as to defendant’s habits with regard to the use of intoxicants.
    11. Criminal law <§=>396(2) — Testimony of defendant’s witness as to transaction held to render competent testimony for state as to same transaction.
    In a prosecution for homicide, where defendant’s wife related her version of a transaction which occurred while she was in the room of deceased, her testimony rendered competent the testimony of a witness who was present during a part of the transaction under Vernon’s Ann. Code Cr. Proc. 1916, art. 811, providing that, when part of an act, declaration, or conversation is given in evidence by one party, the whole on the same subject may be inquired into by the other.
    12. Homicide <§=>346(4) — Defects in charge on manslaughter held immaterial in view of verdict.
    Where, in a prosecution for homicide, the offense was reduced to manslaughter by the verdict, any defects in the charge on manslaughter which were not calculated to prejudice some other defensive issue were immaterial.
    13. Homicide <§=>271 — For jury to say whether information of illicit relation between decedent and defendant’s wife caused passion reducing offense to manslaughter.
    In a prosecution for homicide, that defendant had information that deceased had illicit relations with his wife did npt preclude the rendering of a verdict higher than manslaughter, though such information was adequate cause for passion reducing the homicide to manslaughter, since whether such passion was produced and controlled in the homicide were questions for the jury.
    14. Homicide <§=3294(2)— Charge on temporary insanity induced by excessive use of intoxicants held not error.
    In a prosecution for homicide, the court did not err in submitting a charge on temporary insanity produced by the immoderate use of intoxicants under Vernon’s Ann. Pen. Code 1916, art. 41, where the evidence was such as to justify an inference that defendant’s conduct was the result of the use of intoxicants.
    15. Criminal law <§=>830 — Homicide <§=>81— Instruction to acquit defendant on account of temporary insanity induced by intoxicants held properly refused, but to justify court in giving instruction.
    In a prosecution for homicide, the court did not err in refusing a charge, the effect of which was to tell the jury that they might acquit defendant on account of temporary insanity resulting from the use of intoxicants, since temporary insanity could only mitigate the offense under Vernon’s Ann. Pen. Code 1916, art. 41, though it was sufficient to justify the court in giving a proper charge on the subject.
    16. Homicide <§=>250 — Evidence held to sustain conviction.
    In a prosecution for homicide, evidence held to sustain conviction.
    17. Homicide <§=>270 — Insanity of defendant held for jury.
    In a prqsecution for homicide, whether defendant was insane at the time thereof held for the jury.
    18. Criminal; law <§=>625 — Defendant entitled! to trial of issue of present insanity prior to trial of offense with which charged.
    Under Vernon’s Ann. Pen. Code 1916, art. 39, providing that no person who becomes insane after he commits an offense shall be tried therefor while in such condition, defendant is entitled, where the demand is made before the trial begins, to have the issue of insanity tried first, since one who is insane might not be in a position to properly conduct his trial upon the issue of guilt or innocence.
    
      <§=>For other cases see same topic and KEY-N UMBER in an Key-Numbered Digests and Indexes
    
      19. Criminal law <®=»625 — Objection to failure to determine issue of insanity preliminary to trial held too late after verdict.
    In a prosecution for homicide, where at the time of trial one of defendant’s witnesses expressed the opinion that defendant was insane at the time, but present insanity was not intimated in advance by the attorneys conducting the triaj, or was not apparent to the court at that time, the failure of -the court to impanel a jury tp try the issue preliminary to the trial for the offense with which defendant was charged could not be urged after verdict.
    <§=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Dallas County; C. A. Pippen,' Judge.
    D. E. Soderman was convicted of manslaughter, and lie appeals.
    Affirmed.
    McLean, Scott & McLean and J. W. Kear-by, all of Port Worth, and W. W. Nelms, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is manslaughter; punishment fixed at confinement in the penitentiary for a period of five years.

That the appellant, using a pistol, shot and killed the deceased, Powers, was proved without controversy. Powers owned and operated the Waldorf Hotel, situated in the .city of Dallas. Appellant came into the lobby of the hotel and killed the deceased.

The theory of insanity was presented as a defense; and in mitigation it is claimed that the homicide was due to passion engendered by information that Powers had seduced the wife of the appellant.

Appellant introduced his wife as a witness. On cross-examination state’s counsel propounded this question: “Did you or not know, Mrs. Soderman, that while in Casper, 'on a drunken spree, he (Mr. Sod-erman) had a difficulty with his brother-in-law?” To which she replied: “He was not on a drunken spree when he had any difficulty.” She also testified on cross-examination that she had complained to her husband about his failure to take her out to places; that her husband replied that Powers could take her, as he seemed to have time to go. The direct examination of Mrs. Soderman is recorded in about 20 pages of the record. It embraces her relations with her husband during the entire period of their married life, covering some nine years. She told of the .business and social relations of herself, her husband, the deceased and his wife.

The statute (article 795, C. C. P.) forbidding the wife to become a witness against her husband does not inhibit her cross-examination when she is introduced as a witness in his behalf. Her opportunity for observation and other questions tending to show the accuracy of her direct testimony may be inquired into, and the usual test of cross-examination applied to matters germane and pertinent to her direct examination. Creamer v. State, 34 Tex. 173, and other cases listed in Branch’s Ann. Tex. P. C. § 152. The cross-examination may.not be extended,into new subjects. Bluman v. State, 33 Tex. Cr. R. 64, 21 S. W. 1027, 26 S. W. 75, and other cases cited in section 152, supra. See, also, Johnson v. State (No. 7756) 255 S. W. 416, not yet [officially] reported.

In describing the relations with her husband after she became enamored with Powers, she, on cross-examination, said:

“I begun to complain that be did not pay me any attention, didn’t take me any place, and he was drinking. He bad never drank to excess before that time.”

In view of her testimony in appellant’s behalf, the inquiry made by the state did not transgress the rule stated.

The testimony which appellant elicited from his wife on direct examination led to the conclusion that prior to the time that she began her illicit relations with the deceased he (appellant) had been sober, industrious, and successful in business, and that afterwards thejr relations were strained; that they quarreled when together, and that she complained ..to him about his lack of attention to her and about his drinking. During the cross-examination this question was asked:

“Q. Didn’t be (the defendant) tell you that Hiltoi/ and Powers bad robbed him; isn’t that true, Mrs. Soderman? A. He made remarks like that.
■ “Q. Didn’t he tell you further that he did not propose to stand for it? A. No; he did not.”

In qualifying the bill, the court said that there was no objection to the part of the question first quoted. It appears that there was a negative answer to the second, and that objection to it was promptly sustained. To the first question objection was necessary. Ward v. State, 70 Tex. Cr. R. 406, 159 S. W. 272; Willingham v. State, 94 Tex. Cr. R. 596, 252 S. W. 530; Gross v. State, 61 Tex. Cr. R. 182, 135 S. W. 373, 33 L. R. A. (N. S.) 477; Johnson v. State (No. 7556) 259 S. W. -, not yet [officially] reported. To the second the objection was sustained. It is not plain from our examination of the record that the inquiries were not within the scope of the original examination of the witness. She testified ,to conversations with the appellant touching Powers and concerning appellant’s business affairs. Certainly, the bill of exceptions fails to show that the inquiry was foreign to the matter of the direct examination, and, in the absence of such an averment in the bill, the presumption is in favor of the correctness of the court’s ruling on the matter before it. Golden v. State, 66 Tex. Cr. R. 262, 146 S. W. 946; Brown v. State, 65 Tex. Cr. R. 121, 144 S. W. 265. The grounds of objection stated in the bill are not equiválent to an averment of fact approved by the court. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there collated. Mrs. Soderman was further asked on cross-examination if it was hot true that she did not tell of the illicit relations with Powers until they had gone to El Paso, and appellant had been drinking, and that his conduct was such that she had gone to her mother in Chicago and come back and separated, and that he was living at one hotel and she at another. The court, in his qualification, states that ’there was no objection to the question, but merely to the method of examination. The matter is clearly pertinent to the direct examination wherein she testified to the divorce and several separations from appellant and to the time and manner of imputing to him information pf her relations with Powers.

The witness Wood, a police officer, tesified that he arrested the appellant at a rooming house on AprilYth; fhat appellant’s wife was locked up in her room, and that appellant was raving; that he had seriously assaulted his wife, and injured her; that he stated to the officer that his wife had confessed to him her infidelity and criminal intercourse with a man named Powers, and that this was the cause of his' having assaulted her; that he was puf in jail by another officer. Wood gave the opinion that the appellant was insane. Complaint was made of the failure of the court to permit the witness to testify that he had filed a' charge of lunacy against the appellant. Police Officer York was with Wood. He saw the appellant at the same time and heard some of his remarks. By him appellant offered to prove that he (appellant) had stated that his wife had been assaulted by him because she had confessed her infidelity. This declaration was proved by Wood without objection as a part of the predicate for th® witness’ opinion that appellant was insane. York did not give an opinion touching insanity, but the declaration which he would have imputed to appellant apparently was offered as proof that appellant’s wife had confessed to him her illicit relations with the deceased. She testified to such fact on the trial; so did the appellant. Neither was impeached on the_ subject by proof of conflicting statements out of court, and, under the record as made, we are aware of no rule of evidence which would sustain the admission of the declaration in evidence. As proof of the confession of the wife, the declaration of appellant was obviously hearsay. It was cumulative of the proof of the same fact by Wood, and upon £n issue which was not controverted by any direct proof. Moreover, for the purpose stated, it was relevant alone on the issue of manslaughter, upon which the jury found in favor of appellant.

Several bills of exception are in the form of questions and answers. No reason is given nor discovered for not putting them in narrative form. They are not adequate to call any matter in review, but if considered they reveal no error. One relates to the rejection of the opinion of a witness on the issue of insanity, who detailed no conversation, remark, act, or demeanor of the appellant qualifying him to give an opinion. Williams v. State, 37 Tex. Cr. R. 349, 39 S. W. 687; Plummer v. State, 86 Tex. Cr. R. 487, 218 S. W. 499. Another such bill refers to the testimony of Mrs. Hochter concerning the habits of the appellant with regard to the use of intoxicants, and bears on the issue presented by the direct testimony of appellant’s wife.

Testimony on behalf of the appellant was introduced through his wife relating her version of a conversation and transaction occurring at the time when she was in a room of the hotel with the deceased. Her testimony put Mrs. Hochter present during a part of the transaction, and rendered competent the testimony of Mrs. Hochter to relate her recollection of the interview. Our statute seems conclusive on the subject. It says:

“When part of an act, declaration or conversation * * * is given in evidence by one party, the whole on the same subject may be inquired into by the other.’^ C. C. P. art. 811; Vernon’s Tex. Crim. Stat. vol. 2, p. 759, and authorities collated.

There were addressed to the court’s charge on manslaughter some objections, but not pointing out any faults that we have perceived. The grade of the homicide was reduced to manslaughter by the verdict, and thus any defects in the charge which were not calculated to prejudice some other defensive issue would not be of consequence. Munos v. State, 58 Tex. Cr. R. 147, 124 S. W. 941; Neyland v. State, 79 Tex. Cr. R. 652, 187 S. W. 196; Cooper v. State, 93 Tex. Cr. R. 75, 247 S. W. 549.

This court is not able to concur in appellant’s position that the information that deceased had had illicit relations with appellant’s wife precluded any verdict higher than manslaughter. Such information coming to appellant was adequate cause for passion reducing the homicide to manslaughter, but whether such passion was produced and controlled in the homicide were questions of fact for the jury, to solve. Penal Code, art. 1132, subd. 3; Pickens v. State, 31 Tex. Cr. R. 554, 21 S. W. 362; Branch’s Ann. Tex. P. C. § 2029. See, also, Holman v. State, 92 Tex. Cr. R. 364, 243 S. W. 1093.

The charge on the general issue of insanity followed approved forms such as suggested in Willson’s Tex. Crim. Forms (4th Ed.) p. 929. The same is true of the charge on temporary insanity produced by the immoderate use of intoxicants. The propriety of submitting the last-mentioned issue is challenged. There is in the statement of facts evidence of the immoderate use of intoxicating liquor up to a very short time antecedent to the time of the homicide, and which cogently points to that as the cause of any mental infirmity affecting the appellant at the time he killed the deceased. Indeed, the evidence was such as rendered an instruction on that issue imperative. In article 41 of the Penal Code (Vernon’s Tex. Crim. Stat. vol. 1, p. 22) it is said:

“It shall be the duty of the several district and county judges of this state, in any criminal prosecution pending before them, where temporary insanity is relied upon as a defense, and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquors, to charge the jury in accordance with the provisions of this article.”

The use of intoxicating liquors by the appellant to excess was shown without controversy. 'He had undergone treatment on several occasions as a result of it. He remarried his divorced wife at Hot Springs while he was suffering from the results of drinking. After he went with his wife to El Paso he drank to excess and underwent treatment in a sanitarium. While in El Paso, he and his wife separated twice and were living apart in separate hotels. When she told him of her infidelity, he assaulted her and was arrested. The officers who look him in charge were used by him as witnesses. They described his conduct, and gave the opinion that he was insane. They testified that he had been drinking, and stated symptoms from which they drew the conclusion that he was insane. They did not assume to state the cause. The circumstances were such as justified the inference by the jury that his conduct was a result of the use of intoxicants.

Appellant, on the trial, took note of the bearing on the issue of insanity óf the evidence of the use of intoxicants by the appellant, and invited the court to observe it in the charge by the presentation of a special charge which, after adverting to the evidence of the communication by his wife of her relations with the deceased, uses this language:

“ * * * That his mind was in- a state of nervous disorder, resulting from the use o-f intoxicating liquor, or from any other cause, and that the disclosure made to him produced upon his mind a shock so great as to destroy his sanity, or, if you have a reasonable doubt as to this, and that while in such condition he came to Dallas and shot and killed the deceased, then you are instructed that you will acquit the defendant.”

The effect of this request was to tell the jury that they might acquit on account of temporary insanity resulting from the use of intoxicants. Its refusal was, in our opinion, not error, as such temporary insanity could only mitigate the offense. P. O. art. 41, supra. However, it was enough to justify the court in giving a proper charge on the subject, even if the evidence had been less cogent on the issue in question..

There is much evidence in the record suggesting motive for the homicide other than the claimed relations of deceased and appellant’s wife. Much evidence of express ill will and resentment against the deceased because of business relationship with the appellant is revealed, and there is evidence supporting the state’s theory that the evidence of illicit sexual acts of deceased and appellant’s wife was fabricated. A statement in detail of all the facts is deemed unnecessary. The sufficiency of the evidence to support the convection is conclusive unless appellant was insane at the time of the homicide. That was a controverted question properly submitted to the jury.

During the trial one of the' witnesses for the appellant expressed the opinion that the appellant was insane at the time. After verdict, for the first 'time, appellant, in'his motion for a new trial, complains of the failure of the court to call another jury and have.the issue of present insanity tried preliminary to submitting the issue of appellant’s guilt to the jury. If demand for a separate trial upon the issué of .present insanity had been made in a timely manner, doubtless the trial court would have accorded the privilege. The right of the trial court upon his own initiative, after the jury had been impaneled and charged with the deliverance of the appellant, to stop the trial and begin another would be open to serious question. The statutes do not say in terms that the issue of present insanity shall be first tried. This court has held, however, that where the demand is made before the trial begins it should be first tried for the obvious reason that one who is insane might not be in a position to properly conduct his trial upon the issue of guilt or ihnocence. Article 39, P. C.; Ramirez v. State, 92 Tex. Cr. R. 38, 241 S. W. 1021. Where, as in this case, present insanity is not intimated in advance by the attorneys conducting the trial, or is not at that time apparent to the court, the failure of the court to impanel a jury to 'determine that issue preliminary to the trial for the offense with which the accused was charged cannot be successfully urged after verdict.

The record revealing nothing which, in our judgment, authorizes its reversal, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Because of appellant’s insistence that we -were in error in holding that the cross-examination of his wife did not transcend legitimate bounds we have again carefully examined her evidence elicited by him on direct, examination, and are confirmed in the views heretofore expressed. It is apparent that the wife was seeking to take the entire blame for appellant’s attitude towards her, and to account for his excessive use of intoxicating liquor because of the estrangement which she asserts 'was brought about by deceased. It was pertinent therefore for the 'state to show by cross-examination that appellant was drinking to excess when they were in Casper, Wyo., at a time long prior to an acquaintance with deceased, and that while on a drunken spree in Casper he had a difficulty which grew out of appellant’s treatment of his wife. All of this is revealed from the evidence. We think the state did, not violate the rules of law in its cross-examination.

Some of the matters complained of in appellant’s motion were presented in bills of exception which are in questions and answers. The court did not direct that the evidence in such form be incorporated in the bills. We fail to observe the necessity therefor. .Such bills do not conform to article 846, C. C. P., which provides that:

“Such stenographer’s report when carried into the statement of facts or bills of exception, shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved.”

See, also, Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857, in which many authorities are collated condemning bills violating the provision quoted.

No error ^is presented by appellant’s fifteenth bill of exception which we did not discuss in our original opinion.

In view of appellant’s motion we have again considered the charges given, and the requested charges refused, upon the issue of insanity. We believe the instructions given are in accord with precedents, and that no error was committed in refusing to give those requested.

The motion for rehearing is overruled.  