
    ST. CLAIR v. STATE.
    (No. 9273.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.
    Rehearing Denied June 9, 1926.)
    1. Criminal law <&wkey;>44l¡ — Statement signed by acoused after arrest was private paper and subject to demand for its production only when used in such way that its contents became an issue.
    Written statement signed by accused after arrest was a private paper and subject to defendant’s demand for its production only when used by state in some way by which its contents became an issue.
    2. Criminal law <3=441— Defendant was not entitled to production of statement signed by her after arrest which was not exhibited or referred to before jury (Vernon’s Ann. Code Cr. Proc. 1916, art. 811 [Code Cr. Proc. 1925, art. 728]).
    IVliere statement signed by accused after arrest' was not exhibited by state, nor did state ask any question relative thereto, though it questioned witness about oral statement, which cross-examination showed to have been reduced to writing, defendant was not entitled to its production under Vernon’s Ann. Code Or. Proc. 1916, art. 811 (Code Cr. Proc. 1925, art. 728).
    3. Criminal law c&wkey;459.
    Permitting justice of the peace in murder prosecution to state that shots in body of deceased ranged upward was permissible.
    4. Criminal law <&wkey;l 158(3) — Judgment of trial court sustaining verdict will be upheld, where affidavit of juror showing misconduct was opposed by counter affidavit (Vernon’s Ann. Code Cr. Proc. 1916, art. 837, subd. 8).
    Where one juror in murder trial made affidavit as to misconduct opposed by counter affidavit of another juror as provided by Vernon’s Ann. Code Cr. Proc. 1916, art. 837, subd. 8, judgment of trial court sustaining the verdict will be upheld.
    5. Homicide <3=?>250.
    Evidence held sufficient to support conviction for murder.
    On Motion for Rehearing.
    6. Homicide <3=309(1) — Charge that, if killing was done' while accused was aroused to degree of anger by attack, it would be no more than manslaughter, held sufficient.
    Charge in murder prosecution informing jury that, if accused was aroused to degree of anger by attack and did killing while in such condition, it would be no more than manslaughter, held sufficient.
    ©r^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Milam County; John Watson, Judge.
    Ellie St. Clair was convicted of murder, and she appeals.
    Affirmed.
    Chambers, Wallace & Gillis, of Cameron, for appellant.
    A. J. Lewis, Co. Atty., of Cameron, Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Milam county of murder, and her .punishment fixed at five years in the penitentiary.

Appellant’s chief contention seems based on the refusal of the learned trial judge to compel the state’s attorney to deliver to her attorney certain written statements more fully hereinafter referred to. This matter is presented in several bills of exception, the substance of which will be stated and the matter generally disposed of. Lamkin, a member of the grand jury which found the bill herein, gave testimony for the state; none of his direct testimony being set out in the bill. On cross-examination he said they had before them, while considering appellant’s case, a written statement signed by her. Thereupon appellant sought to have the court compel the state’s attorney to produce and deliver to her counsel said statement for their inspection and use as evidence. This is bill No. 2. Bill No. 3 sets out that after the state had concluded its evidence in chief, appellant renewed her request to compel the production and delivery of “the written statement made and signed by appellant * * * for purpose of evidence,” which request- was refused. Bill No. 4 sets out that while appellant was -testifying in her own behalf, her counsel brought out the fact that the next morning after her arrest she made a statement to the sheriff and county attorney which they wrote down and she signed — after bringing out which testimony appellant again insisted that the stafe be ordered to produce said written statement, which request was again refused. Bill No. 5 sets out that state witness Kennedy on direct examination, without objection, stated that on the morning after appellant’s arrest she told him that certain shoes worn by her and offered in evidence could be found in a stovepipe in Henry Taylor’s house; that he found them there, and said-shoes were produced and testified to as having marks .upon them corresponding to certain tracks found in the vicinity of the body of deceased. The bill further reveals that on cross-examination appellant’s counsel asked witness if the statement about the shoes was reduced to writing and received an affirmative reply. Appellant then demanded that the written statement be produced by the county attorney, and requested the court to order this done, but the court refused. Appellant then moved the court to strike from the record the testimony of Mr. Kennedy as to what appellant had told him about the shoes, which motion was also refused.

Since bill No.. 5 presents most forcibly appellant’s objection, and if disposed of adversely to her contention would settle the matters raised in the other bills, it will be discussed.

The writing called for by appellant was a private paper. Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Taylor v. State, 87 Tex. Cr. R. 338, 221 S. W. 611; Davis v. State (Tex. Cr. App.) 270 S. W. 1022. Such paper becomes subject to appellant’s 'demand for its production only when used before the jury by the state in some way by which its contents become an issue, as illustrated in the cases of Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 1706; Jones v. State, 85 Tex. Cr. R. 547, 214 S. W. 322; Rutledge v. State, 94 Tex. Cr. R. 231, 250 S. W. 698; Cottrell v. State, 91 Tex. Cr. R. 131, 237 S. W. 928; Kirkland v. State, 86 Tex. Cr. R. 597, 218 S. W. 367; Taylor v. State, 87 Tex. Cr. R. 338, 221 S. W. 611.

The bill of exceptions in question wholly fails to show that the state had asked any question relative to the written statement, or that :it had exhibited same or referred to same in any harmful way or otherwise before the jury. Asking Mr. Kennedy if appellant had made an oral statement to him as to where she had hidden the shoes worn by her at the time of the homicide called for no part of the written statement. This appears obvious. If the state had asked outright for part of the written statement made by appellant while under arrest and no objection had been interposed by the defense to the an-swer, we would hold such action clearly a waiver on the part of the accused.

Appellant made no objection to the testimony of Mr. Kennedy, but asked him on cross-examination if the statements of appellant were reduced to writing, and was informed that they were and that she signed it. We observe that these facts were as well known to appellant as to Mr. Kennedy, and were testified to by her when she took the stand, as was also the fact that she told Mr. Kennedy where to find the shoes. None of the bills state either in terms or effect that if appellants attorney could inspect the written statement referred to, same would reveal anything different from or contradictory of the testimony of Mr. Kennedy, and, as above stated, when appellant took the stand she swore that what Kennedy said as to her telling him where to find the shoes was in fact the truth.

The bills are also qualified by the trial judge to show that no limitation was imposed on appellant’s counsel either when she was on the witness stand or in her cross-examination of Mr. Kennedy, in the matter of eliciting everything known to either bearing on the question as to what she said about the finding of the shoes. None of the bills show error.

Bill No. 7 complains that the justice of the peace was allowed to state in substance that the shots in the body of deceased ranged upward. This was permissible. Other matters are set out in the bill as presented to the trial court, but in his qualification of same he states that he excluded all the answer save that part relating to the range of the shots. The court states that he sustained the objection and excluded the part of the answer not responsive, as to where the parties may have stood when firing the shots.

Misconduct of the jury was urged, and one juror made affidavit that the nearness of the path where deceased was killed, to the public road became an issue in the jury room, and that juror Pressley said he knew the locality and situation and that said pathway was not over 200 yards from the public road and drew a map of the premises and roadway to demonstrate the location of the pathway at the point where the homicide occurred. This affidavit was appended to appellant’s motion for new trial. Juror Pressley made a counter affidavit which was attached to the state’s traverse- of appellant’s motion. In his affidavit Pressley denied stating that he knew the pathway was not over 200 yards from the road, and further said that based solely on his recollection of the evidence introduced on this trial, and from a map introduced by appellant, he drew a rough sketch of the premises and the way the road ran, pathway, etc. The judgment of the trial court on the motion recites that he heard the motion and the evidence thereon submitted, and overruled the motion. Such recitation justifies us in upholding his action in refusing a new trial. Subdivision 8 of article 837, Vernon’s O. O. P., provides that as showing misconduct, the voluntary affidavit of a juror is competent, and that the ver-diet may be sustained in like manner. Tbe trial court bad bere an affidavit affirming and one denying tbe alleged misconduct. In sucb case we uphold tbe judgment of tbe trial court in tbe matter.

Appellant, a negro woman, contends that tbe evidence does, not support her conviction for murder. We regret that we are not in accord with this proposition. We will not set out tbe evidence at length, but it shows that appellant told a story different from that told by tbe other witnesses. Tbe killing took place early in tbe morning and at a point about 200 yards from tbe bouse of Henry Taylor, whose cook appellant was at tbe time, and at whose bouse she stayed part of her nights; Taylor being a negro man separated fr.om bis wife. On tbe trial she admitted that as soon as she got to Taylor’s bouse she told him of it,' and that shortly thereafter she went out and got tbe shotgun with which she did tbe killing, from behind a log where she bad secreted it, cleaned it, and put it in a rack. Neither she nor Taylor made any mention to any one of tbe fact of the killing until later when suspicion bad pointed at them and both bad been arrested. Tbe parties who inspected tbe body of deceased said it was lying near the path; that tbe bat of deceased was near his bead and his coat was lying near bis feet. Beyond tbe body from Taylor's bouse was a black jack tree and a haw bush, and between these trees and deceased’s body was found the wadding from a shotgun shell. Appellant explained on tbe trial her part in tbe killing, and said that she was going along tbe path and deceased emerged from behind a bush and threw a stick at her and said be was going to kill her; that she was carrying a shotgun; that deceased caught bold of her clothes and tore her dress in front, or, as she expressed it, “Tore her clothes off of her” ; that they scuffled around for quite a while, she holding onto tbe gun all tbe time, and also bolding’ onto a dress which she bad wrapped up in a bundle. She said finally she ran between deceased’s legs, still bolding tbe gun, and got away and backed off and shot him. She said she then ran as fast as she could to Taylor’s bouse, biding tbe gun behind tbe log as she went. A man who met her near Taylor’s bouse testified that she was not excited, bad no bundle, and that her clothes were not torn. Other witnesses who carefully examined tbe scene where the dead body was found testified there was no indication of a scuffle or struggle. One witness testified that be beard Taylor tell tbe woman a short time before this that if deceased ever fooled with her to kill him. We are not prepared to bold that tbe verdict is so unsupported by evidence as to show it to have been tbe result of prejudice or lack of consideration.

Tbe judgment will be affirmed.

On Motion for Rehearing.

Appellant relies on old article 811, C. C. P. (article 728, 1925 C. C. P.), as authority for contending that she was entitled to have tbe state turn over to her, for use in evidence, an alleged confession in writing made by her, which was in possession of tbe state’s attorney. Tbe point she makes is that tbe state bad drawn out of its witness Kennedy, on direct examination, tbe fact that appellant bad made to him a statement relative to where she bad hidden tbe shoes worn by her at tbe time of the homicide, which statement bad been verified by tbe finding of tbe shoes at tbe place referred to, and that on cross-examination appellant bad elicited from said witness the fact that said statement bad been reduced to writing and signed by her, and that when this was ascertained she made demand for said writing upon tbe state’s attorney, in order that same might be used in evidence for tbe purpose expressed in tbe latter part of said statute above referred to.

Before we would bold the áction of tbe trial court erroneous, we would have to be shown from tbe record that tbe written statement referred to was necessary to an understanding of or to explain tbe oral statement sworn to by Mr. Kennedy. No sucb showing is made. As stated in our original opinion, appellant as a witness in her. case corroborated Kennedy in bis testimony to tbe effect that she made the statement. She swore that she did tell him where her shoes were bidden. She made no statement on tbe witness stand, nor does any appear in her bill of exceptions, which would lead us to conclude that anything in tbe written confession would have clarified or explained tbe testimony given by Mr. Kennedy. We are not in accord with appellant in this matter.

We find nothing in tbe record which in words or by its surroundings indicates that appellant shot deceased in passion of any kind caused by his throwing a stick at her and striking her on tbe bead. She made no sucb claim, nor is same supported by other testimony. We think tbe charge of tbe court entirely sufficient which informed tbe jury that if tbe mind of appellant was aroused to sucb degree of anger, rage, etc., by an attack which bad been made or was about to be made on her with a stick, knife, etc., and that in this condition she did tbe killing, her guilt, if any, would be no more than manslaughter.

We are not reviewing at length tbe testimony which contains other circumstances-showing guilt beside those mentioned in our former opinion. We see no reason for changing our views as to tbe sufficiency of tbe testimony from those heretofore expressed.

Being unable to agree with appellant’s contention, tbe motion for rehearing will be overruled.  