The offense is murder; the punishment confinement in the penitentiary for twenty years.
This is the second appeal, the opinion on former appeal being found in Volume 111, Texas Criminal Reports, at page 116.
Deceased was the wife of appellant. They occupied an upstairs apartment. According to the state's testimony appellant locked the doors leading from the apartment, attacked his wife with a hand mirror and threatened to kill her. Deceased became so terrorized and frightened that she jumped from an upstairs window to the ground below in order to escape. Her spine was broken and she died about three weeks later from the effects of the injury. Prior to the assault, some visitors to the apartment had been ordered by appellant to leave. It appears from the state's testimony, that these visitors were companions of appellant and that they had come with appellant to his apartment on the night in question. Deceased made a dying declaration. We quote the testimony of the attending physician, who was present when she made the declaration: "She gave her name and said she was the wife of Thomas Whiteside and said I had told her that she could not get well and that she wanted to make a statement and she made this statement as near as I can remember: 'Tom ordered the other people to leave the house' and that she tried to get them to stay at least until he partially sobered up but that he was mad and insisted that they leave, and they did leave. That immediately after they left Tom got up and locked all the doors to the apartment, made her undress entirely and made her get on the bed. Then he got a mirror and hit her on the side of the head, making a gash on the side of her head. At that time they *Page 277 heard a girl out in the hall and Tom said: 'You are sending for the police are you.' 'He seemed to be afraid they were hearing him, and he made me move the mattress in the other room. Then he ran in the kitchen, saying he would finish me and I said, 'Oh, Tom, remember the babies' and he said 'G__ d___ you, you will never see the babies again when I get through with you tonight.' I saw him go to a drawer in the kitchen and then I ran to the window and jumped out." Deceased was found by neighbors, in a nude condition, below the window from which she had jumped. She had a wound on the side of her head near the top. There was testimony in the record of prior assaults and antecedent menaces on the part of appellant toward deceased. Appellant's testimony was to the effect that deceased, while overcome by hysteria, jumped from the window of her own volition. Appellant denied that he made any assault upon deceased and testified that she was in a nervous and hysterical condition when she jumped from the window. He said that he at no time threatened her with violence of any character.
On the former appeal we held the indictment sufficient to charge the offense of murder. Appellant renews his contention that the indictment charges no offense. We are unable to agree with him. The principle embraced in the statute and charge of the court is illustrated in Norman v. United States, 20 App. Cases, District of Columbia, 494. See also Wharton on Homicide, Third Edition, page 24; Russell on Law of Crimes, Seventh English Edition and First Canadian Edition, Vol. 1, p. 666.
Appellant filed a plea of former jeopardy, wherein he asserted that he should be exculpated from prosecution by virtue of the fact that on his first trial the court submitted homicide and the jury found him guilty of homicide, such submission and verdict being tantamount to acquittal of murder. In reversing the case on the former appeal, we held that there is no such offense as homicide and that the verdict of the jury finding appellant guilty of homicide was not responsive to the allegations of the indictment. The effect of the new trial in this case was to place the cause in the same position in which it was before any trial had taken place. The former verdict was a nullity. The law against former jeopardy was not offended against in the present conviction. Johnson v. State,1 S.W.2d 896; Hewey v. State, 220 S.W. 1106.
Bill of exception No. 3 is concerned with the refusal of the court to grant appellant's application for a change of venue. It was averred in the application that there existed in Harris County so *Page 278 great a prejudice against appellant that he could not obtain a fair and impartial trial. The state having filed a controverting affidavit, many witnesses pro and con were heard by the court. Their testimony presented conflicting theories. It is the rule that if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying an application will not be disturbed on appeal unless it be made to appear that he abused his discretion. McNeeley v. State, 283 S.W. 522; Shelburne v. State, 11 S.W.2d 519. We are unable to reach the conclusion that the record reflects an abuse of the discretion vested in the trial court.
Appellant excepted to the failure of the court to limit in the charge the testimony of prior assaults and conduct of appellant to the question of motive or malice. It was unnecessary to limit this testimony. We quote from Branch's Annotated Penal Code of Texas, Section 1885 as follows:
"It is not necessary to limit testimony only going to prove a main issue in the case, such as defendant's motive and malice in the commission of the alleged offense for which he is on trial."
Many authorities are cited in support of the text, among them being Brown v. State, 24 Tex. Cr. App. 170; Terry v. State,76 S.W. 928.
Appellant timely and properly objected to the charge of the court for its failure to instruct the jury to acquit appellant of murder unless they believed beyond a reasonable doubt that he had a specific intent to kill deceased. The court having instructed the jury fully on the subject of malice aforethought, the element of intent to kill seems to have been submitted.
Bill of exception No. 5 brings forward the complaint of the action of the trial court in permitting the district attorney to elicit from a witness that appellant had three children. We fail to see the relevancy and materiality of the testimony. However, the bill, as qualified by the trial court, discloses that other witnesses testified without objection that appellant had three children. Therefore if the testimony was inadmissible its receipt in evidence was harmless.
We find many bills of exception bringing forward complaint of the action of the court in permitting certain evidence to be introduced on the part of the state. The majority of these bills are insufficient in their recitals to manifest reversible error. Without specifying the bills by number, it is noted that a great many of the bills of exception contain mere grounds of objection to the reception *Page 279 of certain testimony, with no certificate on the part of the trial court that the facts forming the basis of the objection were true. Such bills are manifestly insufficient to present reversible error. Buchanan v. State, 298 S.W. 569; Branch's Annotated Penal Code of Texas, Sections 207 and 209.
We deem it unnecessary to discuss all the numerous bills of exception found in this record. We have carefully examined every contention made by appellant and fail to find reversible error.
The judgment is affirmed.
Affirmed.
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.