The appellant was tried and convicted of the offense of murder, and his punishment assessed at confinement in the State penitentiary for a term of two years.
The State's contention is and was that the appellant shot and killed his wife and then shot himself twice through the chest. The appellant contended that his wife, on the day of the alleged difficulty, insisted that he borrow $150.00 and let her have it; that he went to the bank and applied for a loan in said sum and the officials of the bank were willing to make the loan upon the security offered but demanded repayment within 90 days, payable in installments of $50.00 per month; that he realized he could not meet such a requirement as he had to pay his current expenses. He returned home and told his wife of the requirements of the bank and that he could not meet the same, whereupon she became angry and began to abuse him and told him that he had not tried; that she grabbed his pistol and shot him twice through the chest; that after being shot he grabbed her and took the pistol away from her, when he lost consciousness and did not know whether he shot her or not; that the first time he learned that his wife was shot was in the sanitarium when the county attorney told him.
The appellant's first contention is that the evidence is insufficient to warrant a conviction of the offense of murder without malice. The testimony adduced by the State shows that on the occasion of the fatal difficulty there were two parties in the back yard of an adjoining home and one on the sidewalk near the appellant's home looking at a ball game. The witness who was on the sidewalk testified that she heard a scream in the appellant's back yard; that she turned and looked in that direction and saw the appellant and his wife facing each other and immediately heard a gun fire; that she ran away and didn't remember how many shots were fired; that the scream which she heard was a woman's voice. One of the two witnesses *Page 97 who were in the back yard of an adjoining home testified that they were in the back yard of John B. Williams' home across the street from Mr. Baird's home; that they heard a gun fire and a scream which sounded like the voice of a woman coming from the direction of Mr. Baird's home. The other witness testified that he was sitting in the back yard of John B. Williams' home watching a ball game; that he heard Mrs. Baird scream three times, saw her throw up her hands and saw Mr. Baird shoot the gun twice, and she fell to the ground; that he, Baird, had a pistol and shot twice in rapid succession; that she, Mrs. Baird, screamed and fell to the ground and then he, Mr. Baird, knelt over her and shot her again; that the three shots which he heard were made by Mr. Baird shooting towards his wife. We believe that the testimony adduced by the State, if believed by the jury, would justify a conviction of murder.
By bill of exception No. 1 the appellant complains of the action of the trial court in permitting the district attorney, on cross examination of the appellant, to ask him "is it not a fact that you were drinking on that day and is it not a fact that you went home repeatedly under the influence of liquor?" The bill of exception fails to disclose what answer, if any, the appellant made to said interrogatory, and therefore the bill fails to disclose any error.
By bill of exception No. 2 the appellant complains of the action of the trial court in permitting the State to prove by Mrs. Adams that at times Baird was mean to his wife and other times he was good to her. The court in his qualification to the bill states that this testimony was admitted in rebuttal to the testimony offered by the appellant that he always treated his wife very kindly. We believe that in view of the qualification to the bill it fails to disclose any error. Besides, we are of the opinion that the testimony was admissible to show the appellant's cruel treatment of his wife and ill feeling toward her, if any, and in support of our views we refer to the case of Howard v. State, 25 Texas App., 686, and Spears v. State,41 Tex. Crim. 527.
Bills of exception 3 and 4 will be treated together as they relate to the same subject matter. By said bills the appellant complains of the action of the trial court in permitting the mother of the deceased to testify that she knew how he, appellant, treated his wife; that he abused her a lot, sometimes it was very bad; that she stayed there at nights and could not sleep because she was uneasy. The court in his qualification to *Page 98 the bill states that the appellant interposed the following objection to said testimony: "I object to her condition." As thus qualified, the bill of exception fails to disclose any error. However, we are of the opinion that the testimony was admissible under article 1257a, Penal Code, to show the appellant's conduct, demeanor, and ill feeling toward the deceased.
By bill of exception No. 5 the appellant complains of the charge of the court. We have examined the court's charge and are of the opinion that it submitted the appellant's defensive theory in a very favorable manner.
By bill of exception No. 6 the appellant complains of the argument of the district attorney. The bill of exception, however, shows that the court promptly sustained the appellant's objection and instructed the jury not to consider same. We do not believe that under the circumstances the argument was hurtful to the appellant in that the argument complained of was not of such a nature as tended to arouse the passion or prejudice of the jury against the appellant; besides, the jury assessed the minimum penalty prescribed by law for the offense of which the appellant was charged.
By bill of exception No. 7 the appellant complains of the action of the trial court in not granting his motion for new trial based upon newly discovered evidence. The State contested this motion supported by affidavits and the entire matter was submitted to the court whose province it was to determine the issue thus raised, which he did, and this court is not authorized to disturb his finding unless we can say that his act was not justified, and shows an abuse of discretion.
Finding no reversible error in the record, the judgment of the trial court is in all things 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.