The soundness of several of the announcements made in the original opinion is challenged in the motion.
The former wife of the appellant (Mrs. Ruth Grundy) was called by him as a witness and gave testimony favorable to the accused on the issue of insanity. It appears from her testimony that she was the wife of the appellant for about four years but was divorced from him a short time before the homicide. She detailed many incidents upon which she based her conclusion that he was insane to a degree that he did not know right from wrong. The length of her testimony, as found in the statement of facts, renders a recital of it in detail impracticable. However, on her direct examination she testified that she had five children by a former husband and on cross-examination she said that she had been married four times. The subject of the witness' marital relations and the number and paternity of her children having been opened by the appellant, the contention that the inquiry as to the number of times that she had been married was not proper cross-examination seems untenable. The propriety of the inquiry into the antecedents of a witness by showing his occupation, social connections, manner and place of living, and the like have often been affirmed. See Underhill's Crim. Evidence, 3rd Ed. sec. 389; Ruling Case Law, Vol. 28, p. 629, sec. 199; also McLeod v. State, 75 S.W. 522, and other cases collated in the notes to the case of People v. Bond, reported in Amer. Law Rep. Vol. 1, p. 1397. It may be added, however, that the bill of exception fails to show either in detail or in substance the nature or purport of the testimony of the witness in behalf of *Page 447 the accused. Such omission leaves this court without recitals from the bill upon which to determine the merits.
Several witnesses, some of whom were friends of the accused, testified upon the issue of insanity and related circumstances which might well have been the basis of a lunacy complaint against him. The failure to institute such proceeding was a proper subject of comment by counsel for the State as combatting the evidence of insanity. Nor is it thought that the verbiage of the remarks is justly subject to the criticism which the appellant urged against it. It may be added, however, that the bill does not show that lunacy complaints were not established nor does it present any other background which would justify this court in treating the remark as an adequate ground for reversal. Among the statutory grounds for a new trial is C. C. P. Art. 753, subd. 7, which subdivision reads:
"Where the jury, after having retired to deliberate upon a case, have received other testimony."
It is an established rule that when, as in the present case, it is claimed that the statute mentioned was transgressed and on the hearing before the trial court there is conflict of evidence, the finding of the trial court is conclusive on appeal. See Barnard v. State, 87 Tex.Crim. R.; Kirby v. State, 96 Tex.Crim. R..
In his motion for rehearing appellant stresses his contention that in its retirement the jury heard evidence from one of its members that the appellant was a gambler and from another that he looked like a dope fiend. If there be conflict, in the evidence, the finding of the trial court against the accused is conclusive here. The conduct of the trial, as shown by the record, justified the juror in referring to the subject of the appellant's vocation. When interrogated about the vocation of the accused, his former wife used the following language:
"As to whether or not he was a gambler, just what do you mean, there are different kinds of gamblers; you mean one who shoots dice or plays poker principally for a livelihood, Mr. Grundy has not played cards since one year ago in February; he played cards at one of his friend's house in February, and so far as I know he has not touched a card since that time. I never saw him shoot any dice in his life."
Several of the jurors specifically denied that there had been any statement during the deliberations of the jury that the appellant was a gambler. Some of them said that there were statements that he had a cousin who was a gambler, and several of them said that the *Page 448 deceased was a gambler. There was much evidence given on the subject of insanity going to show the conduct of the accused as variant from what would be expected of a person of his normal faculties. There was evidence of his intoxication. At most on the subject, the record here shows that some juror said that the appellant looked like he was insane, and another said that he looked more like he was a "dope" fiend. Upon this subject there was conflict of evidence. Granting the truth of it, however, it is not regarded as violative of the statute in question. It was more in the nature of a permissible argument incident to the discussion among the jurors. See Jack v. State, 20 Tex. Cr. App. 656; Straley v. State, 106 Tex.Crim. R..
The motion is overruled.
Overruled.
HAWKINS, J., absent.