The appellant was convicted of manslaughter, and her punishment assessed at four years in the penitentiary.
The record discloses that the appellant was charged with the murder of her husband, Jim Davis, by shooting him with a pistol. It appears that the appellant and deceased had only been married a few days at the time of the homicide and had only been occupying the residence where the homicide occurred a couple of days; and that the appellant had a baby girl about five years of age by a former husband. It was evidently the contention of the state that the appellant killed deceased on account of his misrepresentations to her prior to the marriage as to his property, and upon his refusal to furnish her with such household and kitchen furniture as she desired; and that by reason of his misrepresentations regarding his property she secured a pistol and shot the deceased in the back of the head, without provocation, while he was working around some shrubbery in the yard. It is further shown by the record that at the time of the homicide there was no one present except the deceased, appellant and her small child. Appellant first contended that the homicide was committed by her former husband, and that she narrowly escaped a shot fired at her at the same time. She afterwards admitted the killing to the sheriff, and contended that the reason for her former statement to the effect that her first husband was the guilty party was on account of being afraid of the relatives of the deceased. The appellant's defense was that the deceased became angry with her on account of bringing her little girl with her; that he refused to furnish her and the child with food while en route to their future home; that he insisted upon her getting rid of the child, and had threatened, on the evening of the homicide, that if she didn't get rid of the child he would kill her and the child that night; and that by reason of said threats and fear of her life and that of her child, she killed the deceased.
The record contains 21 bills of exception, the number of which precludes a discussion of each bill separately. Bill No. 1 complains of the insufficient statement of the District Attorney to the jury as to what he expected to prove in sustaining the charges in the indictment. This bill, as presented, shows no error.
Bill No. 2 complains of the action of the court in permitting *Page 447 the sheriff to testify, over appellant's objection, that when he reached the scene of the homicide, deceased was lying on his back near a flower bush, it being contended that there was no evidence showing that the body was in the same position as at the time when deceased fell. This objection would go to the weight and not to the admissibility of the testimony.
Bill of exception No. 4 complains of the action of the court in permitting the state to show that the deceased, his brother and relatives belonged to the Missionary Baptist Church. It appears from the bill that the deceased was living in a community of Mormons, and the objection to the testimony complained of was that it failed to prove any issue in the case and was prejudicial. This bill, as presented, shows no error; it fails to show in what way or manner the appellant was prejudiced by reason of such testimony, and fails to show that the appellant was a member of, or in any way in sympathy with, the Mormon belief. On the contrary, the record discloses that her religious activities were connected with the Missionary Baptist Church.
Bill No. 5 complains of the refusal of the court to permit the hotel clerk, Bishop Davis, to testify that on the night of March 18, 1926, a few days prior to the homicide, after deceased had registered and had been assigned to a room for himself, his wife and her little girl, and after they had inquired about getting something to eat and had stepped outside the hotel, they did not have time to go to the cafe and take lunch during the interval that elapsed while they were absent from the hotel. The court sustained the state's objection to this testimony on the ground that it called for an opinion and conclusion of the witness. We are of the opinion that there is no error shown in this bill, as the court permitted the witness to testify as to the distance from the hotel to the cafe and the time intervening between the departure and return of deceased and appellant to said hotel.
Bill No. 6 complains of the action of the court in refusing to permit appellant to show by the witness Rev. H. E. Davis what official positions the appellant held in his church and Sunday School. This bill, as presented, shows no error. This witness was permitted to testify to the general reputation of the appellant, his association with her, and what opportunity he had to know of said reputation.
Bill No. 7 complains of the refusal of the court to permit appellant's counsel to dictate, in the presence and hearing of the jury, his bill of exception stating what he expected to prove by the witness Rev. H. E. Davis, as set out in bill No. 6. The court qualifies this bill by stating that he declined to permit counsel *Page 448 to state in the presence and hearing of the jury what he expected the witness to testify after having sustained the state's objection thereto. This bill, as presented, shows no error. It would be of little use for the court to refuse to permit this kind of testimony to go to the jury, and then permit counsel to state in the hearing and presence of the jury what he expected to prove by the witness.
Bill No. 8 complains of the refusal of the court to permit appellant's counsel to state in the presence and hearing of the jury what he expected to prove by Dr. Aldredge, and of the action of the court in requesting appellant's counsel to make known to him at the judge's stand what facts he expected to develop from said witness. The court's explanation of this bill is to the effect that in order to avoid the necessity of retiring the jury he made the request to appellant's counsel as stated above. This bill presents no error.
Bill No. 11 complains of the refusal of the court to permit appellant to prove by deceased's brother, Henry Davis, that a complaint for lunacy had been filed against the deceased in 1922. The court sustained the state's objection on the ground that the complaint would be the best evidence. This bill, as presented, shows no error.
Bills Nos. 12 and 17 complain of the action of the court in permitting the state to prove by appellant on cross-examination that she desired higher priced furniture than deceased had purchased for her after the marriage, and in permitting the witness Mrs. Henry Davis to testify that the appellant stated that the dining room table would do, but that she didn't intend "eating any meals off the damned thing." The appellant urges that this testimony was immaterial. We are of the opinion that this testimony was admissible as tending to show motive.
Bills Nos. 13, 14, 15, 16, and 20 complain of the action of the court in permitting the state to interrogate appellant concerning a certain letter written by her to deceased prior to their marriage, and in permitting the state to introduce parts of the letter in evidence, said letter being to the effect that, "I am still having h_____ here, the old man giving me the devil this morning." These bills indicate that this testimony was admitted by the courts for the purpose of rebutting the appellant's testimony in chief to the effect that prior to said marriage she was living with her aunt and uncle, that she was welcome there, and that she had a good, comfortable home with them. We are of the opinion that the evidence complained of was properly admitted for the purpose indicated. *Page 449
Bill No. 19 complains of the action of the court in permitting the state to show by the sheriff that when he and the County Attorney reached the scene of the homicide they talked to the appellant and she appeared to be cool and composed. We think this testimony was admissible as tending to show deliberation and malice, and also in rebuttal of the evidence of appellant to the effect that when she shot deceased she was so excited she didn't know what she was doing.
Having carefully examined the entire record, and having found no reversible errors therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
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.