Conviction is for murder with punishment assessed at ten years' confinement in the penitentiary.
Appellant killed Claude Nichols in July, 1921. Appellant and his wife had separated in May preceding the killing. She was conducting a restaurant and rooming house. Deceased was one of the roomers. Appellant contends that deceased was the cause of the estrangement between accused and his wife. At the time of the killing deceased was seated on a bench in front of the restaurant. Appellant fired two shots with a double barrel shot gun, one while deceased was sitting on the bench and the other as he entered the door of the restaurant. Appellant's contention was that deceased placed his hand in his pocket and declined to remove it at the command of appellant and that from this conduct on the part of deceased appellant thought his life was in danger. A further statement of the facts is not thought to be necessary.
We find four bills of exception in the record which we regret may not be considered. They all relate to questions asked appellant upon cross-examination. The bills recite that the questions were answered but omit to show what the answers were. In such condition the bills are defective and present no matter calling for our consideration. (See authorities collated under Sec. 210, Branch's Ann. P.C. and under Note 21, Art. 744, C.C.P.)
Prosecuting attorney in his argument said, "Gentlemen, there is a rule of law in this State which a woman cannot testify against her husband." Upon objection being made the court told the attorney to desist and not to refer to same again, and instructed the jury that the statement was improper and that they should not consider it for any purpose. In view of this proceeding we see no serious error in refusing a written instruction for the jury to disregard the argument. The bill gives us no information as to what subject the prosecuting attorney was discussing. Clara Jasper, appellant's wife, was shown by the evidence to have been in a position to have known material facts. She was not used as a witness by appellant and could not be so used by the State. If this was the matter to which State's counsel was referring he had a right to comment on it.
One ground upon which a new trial was sought is alleged newly discovered evidence. The order of the court recites that evidence was heard upon the motion and that exception was reserved to overruling it. No bill of exception is presented incorporating the evidence so heard, neither does the record contain a statement of the facts proven on the motion. In such state of the record we must presume the action of the court to have been correct as nothing appears showing the contrary. Cade v. State,258 S.W. 484; Harcrow v. State, 261 S.W. 1046; Redford v. State,262 S.W. 766; Hicks v. State, 261 S.W. 579; McKinzie v. State,260 S.W. 585. *Page 523
The record presenting no errors which may be considered, the judgment is affirmed.
Affirmed.
ON REHEARING.