
    COX v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1910.
    Rehearing Denied Dec. 7, 1910.)
    1. Criminal Law (§ 1091) — -Appeal—Bill op Exceptions.
    While a bill of exceptions'may be included in a statement of facts, it must clearly show the matter sought to be presented and its connection.
    [Ed. Note. — For other eases, see Criminal Daw, Dec. Dig. § 1091.]
    2. Criminal Law (§ 452) — Witnesses—Competency.
    A physician who was not familiar with accused, having only seen him two or three times, and who had never noticed anything wrong with him except on one occasion, when accused seemed to have been greatly excited, was crying, and complained that deceased had assaulted him a few moments before, was not competent to testify as to accused’s sanity or insanity.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1053-1055; Dec. Dig. § 452.]
    3. I-Iomicside (§ 340) — Appeal — Harmless Error.
    Where accused, who shot and killed deceased 15 or 20 minutes after a personal encounter between them, was only convicted of manslaughter, an instruction that, if there was not sufficient cooling time, the homicide would be reduced from murder to manslaughter, was not materially prejudicial.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-720; Dee. Dig. § 340.*]
    4.Criminal Law (§ 761) — Instructions— Weight op Evidence.
    An instruction that mere weakness of mind is no defense to crime, provided accused has sufficient reason to know the quality of the act charged against him, and knew the difference between the-right and wrong thereof, was not on the weight of evidence, as assuming that accused was weak-minded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1754-1764; Dec. Dig. § 761.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    M. S. Cox was convicted of manslaughter, and appeals.
    Affirmed.
    Supple & Harding, John H. Sharp, and W. P. Hancock, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of manslaughter; his punishment being assessed at five years in the penitentiary.

1. Appellant’s first complaint is that the court erred in not admitting the testimony of Dr. Spivey as to his opinion of the mental responsibility of appellant, and refers us to page 22 of the statement of facts for his bill of exceptions. Referring to the statement of facts which is at the close of Dr. Spivey’s testimony, we find this language: “The court sustained the objection of the state to defendant’s counsel asking the witness whether or not, in his opinion, from his observation of him (defendant), his conduct, and his actions at that time, he was sane or insane, on the authority of Wells v. State [50 Tex. Cr. R. 499] 98 S. W. 851, and Williams v. State, 39 S. W. 687.” The latter case will also be found reported in 37 Tex. Cr. R. 348. Just what part of Dr. Spivey’s testimony appellant relied upon as a predicate for his opinion that he (appellant) was insane is not shown. In one part of the testimony Spivey stated appellant was acting like a maniac. On objection of the state this was excluded. Following this on the same page, further testifying, Spivey stated that appellant was acting like a maniac. This went before the jury without objection, so far as the statement of facts is concerned. While a bill of exceptions may be included in a statement of facts, yet it must be put in such form that the court will readily see the matter sought to be presented and its connection. The court will not look through the entire statement of a witness in order to find matters, where it is contended same ought to have been admitted or rejected; but, even if we should do so, we are of opinion the court’s ruling was’ not error. Spivey was not familiar with appellant, had only seen him two or three times, and had never noticed anything wrong with him, except on this occasion. He says upon this occasion he seemed to have been very much excited, and was crying, and complained that the deceased, Page, had made an assault on him a few moments before and struck him. This is practically the testimony of this witness bearing upon the question of insanity. We are therefore of opinion that there was not sufficient evidence to authorize the witness to give his opinion as to the sanity or insanity of appellant.

2. The third and fourth assignments of error complain of the court’s refusal to give the fifth and sixth special instructions requested by appellant. The motion for new trial asserts that these charges correctly stated the law on the subject of manslaughter, eliminating what he contends is vice in the general charge; that is, cooling time. The question of cooling time is in the case under appellant’s testimony. He testified that about 16 or 20 minutes before the shooting the deceased grabbed him in the breast and shook him around. He says; “I told •him he was mistreating me. He struck me two or three times. I begged him to let me loose. I didn’t feel 'that I had mistreated him. He sai£ he didn’t want none of my argument; that he had all the information he wanted, about what I had been telling. He would not let me talk about it. He accused me of telling that he and Mr. Creech had robbed Sam Woods and selling whisky. He said that Mr. Creech had told him that I was telling everybody, strangers coming around there, and was going to get them in trouble. He told me that he was ready to show me who Mr. Page was; that several around there was afraid of him, and he said he fought his last time with his fists, and would not bruise his fists any more. I begged him to go home and let me alone. He said he would go, and he would go and get him a gun, and for me to go get me one, and we would settle this — said he would give me a fair chance, and for me to get a gun, that he was going to get his. He left me. I don’t know where he went. I stayed around the yard there, I suppose. He got me scared of him, and thought he was going to kill me. X was afraid he was — he said he was. He had been drinking. I had been sick all that fall, and I was sick that day.” This occurred something like 15 or 20 minutes before appellant shot and killed deceased, Page. We are of opinion that this suggested the issue of cooling time. Under the state’s theory of the immediate facts of the killing, Page was shot while he was doing nothing, just standing by the counter on one side and appellant on the other; that appellant got a gun from under the counter, and shot Page in the head back of the right ear. Prom the state’s standpoint, eliminating these antecedent matters, which appellant claimed enraged his mind and made him afraid of Page, the issue of manslaughter was hardly in the case. If deceased, Page, made the attack on him 15 or 20 minutes-before the homicide, which appellant speaks of, and he thereby became very much excited and enraged, and afraid of his life, and it would have reduced the killing to manslaughter had it then occurred, the issue of cooling time was in the case, if he killed' for that reason 15 or 20 minutes afterwards. There would have been error, for which appellant might have justly complained, had the issue of cooling time not been given, provided he had been convicted of a higher offense than manslaughter.

The court’s charge in this connection is further criticised because, in submitting the issue of manslaughter, under the attendant circumstances, as stated in the charge, each charge given by the court was qualified and1 limited by cooling time. It is contended that appellant was entitled to a charge on manslaughter without the limitation of cooling time, conceding that it was in the case. Had appellant been convicted of murder of either degree, this matter might have become more or less serious; but, having been convicted of manslaughter, we are of opinion that there is no sufficient warrant for us to hold it materially injurious. Crews v. State, 34 Tex. Cr. R. 533, 31 S. W. 373. Cooling time in this case bore upon the issue of manslaughter, and it was given in order that the jury might intelligently pass upon that issue. The jury were in effect told that, if there was not sufficient cooling time, the homicide would be reduced from murder to manslaughter. The jury convicted of manslaughter, which, it occurs to us, gives appellant the full -benefit of this issue, and there was no error in the court’s charge, and none in refusing the special requested instructions.

3. The twenty-ninth section of the charge given by the court is attacked as being upon the weight of evidence, wherein the court uses this expression: ‘'Mere weakness of mind is no defense to crime, provided the party accused has sufficient reason to know the nature and quality of the act charged against him, and knew the difference between the right and wrong thereof.” The court’s charge fully presented the issue of insanity, conceding that the evidence raised that issue. The excerpt from the charge states a correct proposition of law. Nor does it assume that appellant was of weak mind. It only instructed the jury that mental condition would not be a defense to crime, unless it reached the point of preventing the party from knowing the difference, between the right and wrong of the act he had committed.' It does not assume nor -inform the jury that appellant was weak-minded. It is a general limitation upon this issue of insanity, and informed the jury as a matter of law that mere weakness of mind will not excuse an act that would be otherwise criminal, and that weakness of mind must reach the stage that the party does not kAow the difference between right and wrong of the act committed. The charge on insanity is otherwise free from any character of criticism. We believe the charge is in consonance with our law as it has been enunciated by this court.

4. The evidence is ample to support the finding of the jury.

Believing there is no error in the record, the judgment is affirmed.  