
    GRAY v. STATE.
    (No. 8860.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.
    Rehearing Denied May 27, 1925.)
    1. Criminal law &wkey;784(I) — instruction on circumstantial evidence required only when in-culpatory evidence wholly circumstantial.
    It is only when the inculpatory evidence is wholly circumstantial that an instruction as to that character of evidence is demanded.
    2. Criminal law &wkey;>8l4(17)— Charge on circumstantial evidence not required, when proof of defendant’s admission of committing crime in evidence.
    Proof that defendant admitted or confessed having killed deceased is direct and not circumstantial evidence, and charge on circumstantial evidence is not required, when proof of such admission or confession is in evidence.
    3. Criminal law &wkey;>8l4(l7) — Charge on circumstantial evidence not required, where facts proven closely related to main fact.
    If facts proven are in such juxtaposition to main fact to be proved as to be equivalent to direct testimony, charge on circumstantial evidence is not required.
    On Motion for Rehearing.
    4. Criminal law <&wkey;l090(7) — Refusal of continuance not reviewable, in absence of bill of exceptions.
    Refusal to continue a case cannot be reviewed, in absence of bill of exceptions.
    5. Criminal law <&wkey;!038(3), 1056(1) — Refusal to read defendant’s special charges to jury not reviewable, where not excepted to nor charges presented before argument.
    Refusal to read to jury defendant’s special charges is not reviewable, in view of Vernon’s Ann. Code Cr. Proc. 1916, arts. 737a and 743, where it was not shown that they were presented to court before argument or that their refusal was made subject of exception.
    6. Criminal law c&wkey;l09l (I I)— Bills of exceptions in question and answer form not considered.
    Bills of exceptions in question and answer form, not shown to have been specifically authorized, are not in compliance wth Vernon’s Ann. Code Cr. Proc. 1916, art. 846, and cannot be considered.
    7. Criminal law <&wkey;IÚ90(l9) — Trial court’s rulings to be reviewable must be preserved by bill of exceptions and not by motion for new trial instead.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 744, the trial court’s rulings in receiving and rejecting evidence, to be reviewable, must be preserved by bill of exceptions, and motion for new trial is not a substitute.
    8. Criminal law <&wkey;8l4(!7) — Instruction on circumstantial evidence not required, where direct evidence that defendant killed deceased.
    Where there is direct evidence from any source that deceased was killed by accused, a charge on circumstantial evidence is not required, though intent with which homicide was committed is to be inferred from circumstances.
    9. Criminal law <&wkey;>8l4(!7) — Charge on law of circumstantial evidence in homicide prosecution held properly denied.
    In homicide prosecution, court’s refusal to instruct on law of circumstantial evidence held not to require reversal in view of the evidence.
    Commissioners’ Decision.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Sterling Gray was convicted of manslaughter, and he appeals.
    Affirmed.
    John T. Buckley, of Longview, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Kaufman county for the offense of manslaughter, and his punishment assessed at confinement in tlie penitentiary for a term 'of four years. Deceased was tlie wife of appellant.

Tlie. testimony shows that appellant went to a house at night where his wife and step ^children were staying, and, on entering the room where his wife was, found her on the bed with another negro, called in the record “Mr. Whang.” “Whang” immediately opened fire, and the deceased ran, and appellant grabbed the pistol out of “Mr. Whang’s” hands, and,' upon “Mr. Whang’s” running appellant began shooting in the direction he and deceased had gone. Shortly after the shooting had ceased, appellant made the statement to his stSpson that he got one of them, but he did not know which one it was. The next day the deceased was found a short distance from the scene of the shooting, in the cornfield. The testimony further shows that the deceased was shot in the back, and that her death was caused by this wound.

There are but two bills of exceptions in the record. Bill of exception No. 1 is in question and answer form, and, under article 846, Code of Criminal Procedure, we cannot consider same. Dunlap v. State, recently decided by this court and not yet reported. We have examined the testimony contained in said bill of exception No. 1, however, and are of the opinion that it shows no error, as it seems that the very question of which complaint is made in said bill was answered favorably to the defendant, and at least was not of sufficient importance to require a reversal, could the bill be considered.

Bill of exception No. 2 complains of the action of the court in refusing to charge on circumstantial evidence. It has often been held by this court that it is only when the inculpatory evidence is< wholly circumstantial that an instruction as to that character of evidence is demanded, and it has al-. so been the universal holding that proof that defendant admitted-or confessed having killed the deceased is direót and not circumstantial evidence of the main inculpatory fact, and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. Heard v. State, 24 Tex. App. 111, 5 S. W. 846; Smith v. State, 28 Tex. App. 315, 12 S. W. 1104; Guerrero v. State, 75 Tex. Cr. R. 558, 171 S. W. 733. It has also been held that, if the facts proven are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Kidwell v. State, 35 Tex. Cr. R. 264, 33 S. W. 342.

Following the rules above announced, we conclude that there was no error in the court’s action in failing to charge on circumstantial evidence in this case.

This disposes of appellant’s assignments; and, finding no error in the record, it is our opinion that the case should in all things be affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The complaint of the refusal to continue a case cannot be reviewed, in the absence of a bill of exceptions. See Nelson v. State, 1 Tex. App. 41, and numerous earlier cases therein cited. Many subsequent cases are collated in Branch’s Ann. Tex. P. C. § 304; also in Vernon’s Texas Crim. Stat. vol. 2, p. 529, note 5. See, also, Jones v. State, 86 Tex. Cr. R. 261, 216 S. W. 183; Tippins v. State, 86 Tex. Cr. R. 205, 217 S. W. 380.

The complaint of the refusal to read to the jury the appellant’s special charges cannot be sustained, for the reason that it is not shown that they were presented to the court before the argument, nor that their refusal was made the subject of exception. See C. C. P. arts. 737a and 743; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703, and precedents there cited.

The bills of exceptions composed of a transcription of the stenographer’s notes in question and answer form are not shown to have been specifically authorized, are not in compliance with the statute (article 846, C. C. P.), and cannot bo considered. Soderman v. State, 97 Tex. Cr. R. 23, 260 S. W. 607; Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857; Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589, and many cases collated in the authorities cited.

The various matters of which complaint is made in the motion fdr new trial and which are stressed in the application for rehearing, with the exception of the one complaining of the refusal to charge on circumstantial evidence and that. challenging the sufficiency of the evidence, are not properly here for review. The rulings of the court in receiving and in rejecting evidence, in order to be reviewed, must be preserved by bills of exception, and the motion for new trial cannot be regarded as a substitute. Article 744, C. C. P., Vernon’s Tex. Crim. Stat. vol. 2, p. 536, note 20; Holloway v. State, 88 Tex. Cr. R. 126, 224 S. W. 1102; Begonia v. State, 88 Tex. Cr. R. 310, 226 S. W. 405; Reid v. State, 88 Tex. Cr. R. 364, 226 S. W. 408.

As we understand the statement of facts, before her marriage to the appellant the deceased had a son, Jesse McDavid, and the appellant had another stepson called McMur-ry Ramey. Some three weeks before her death the deceased and the two stepsons left the home of the appellant and went to Duke’s ranch to work, and occupied a house with a woman named Gertrude. Will Jones, a negro man called “Whang,” also lived at the house. According to the state’s witness Mc-David, before the removal to Duke’s ranch, there had been a quarrel between the appellant and his wife. Appellant went to the house in the nighttime after some of the witnesses were asleep, and upon his entry a scuffle took place between Jones and the appellant, in which appellant took possession of Jones’ pistol after it had been fired several times. Jones and the deceased fled from the house into a cornfield which seems ¡to have been very near the house. After'they fled, there was evidence to the effect that appellant fired twice into the cornfield; that he heard his wife “holler” as though she was hurt; that her body was found by the appellant on the following evening in the cornfield, about 22 feet from the house. A witness testified that after the shooting appellant went out of the house, and upon his return said, “I got one of them ¡ I do not know which.”

According to his testimony, as the appellant entered the room he said: “Hey, what are you niggers doin’?” He thought there was a bunch of men in the room. Jones immediately sprang to his feet, took his pistol from under the pillow, and fired at the appellant a number of times. The wife of the appellant ran out of the house, and Jones also fled to the cornfield. Appellant claimed that he did not know that his wife was shot, and’ that he discovered her body by accident.

There was testimony about another pistol in the possession of the appellant. One of the witnesses declared that the appellant, immediately after the shooting, said that he was going to raise hell on the ranch.

The announcements of this court are numerous to the effect that, where there is direct evidence from any source that the deceased was killed by the accused, a charge on circumstantial evidence is not required, although the intent with which the homicide was committed is to be inferred from circumstances. See Russell v. State, 38 Tex. Cr. R. 590, see p. 596, 44 S. W. 159; also other cases collated in Branch’s Ann. Tex. P. C. § 1874, subd. 1.

It is not upon the remark of the appellant that he “got one of them” alone which the state relies as dispensing with the necessity for a charge on circumstantial evidence.That he fired into the cornfield where she fled and where she was killed by a pistol shot was' direct and definite. The record is void of any cause of her death other than the shots fired by the appellant. As we understand it, the record excludes any theory looking to her wounds having been inflicted by the shots fired by Jones. Her exclamation, “heard by the appellant” after he fired, and where the deceased was in the cornfield, is not to be ignored, but it, with all the other incidents in which the tragedy is set, is to be taken into account in interpreting the meaning of the appellant’s declaration that he “got one of them.” In the light of the other surrounding facts revealed by the evidence, it is believed that the remarks last quoted must be construed as a declaration admitting that he had killed the deceased. At any rate, in the light of the precedents, we are impressed with the view that the action of the court in refusing to instruct the jury that reliance was had on‘ circumstances alone, and to give the jury a charge on that basis, was not a matter demanding or authorizing a reversal of the judgment. See Holt v. State, 9 Tex. App. 582; Crews v. State, 34 Tex. Cr. R. 543, 31 S. W. 373; Tooney v. State, 8 Tex. App. 462.

The motion is overruled. 
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