Supplementing what has been said and making more definite the reasons on which the majority of the court base their judgment that the record requires a reversal, the following observations are made:
The appellant killed his wife under very revolting circumstances. The only motive which from the evidence suggests itself to our minds is that of mental derangement on the part of appellant. While there is a conflict of evidence as to the sanity or insanity of appellant, his witnesses make out a strong case in support of the affirmative. The appellant was afflicted with many physical defects. He stuttered so that he could hardly be understood. He was so deaf that it was almost impossible to make him hear or understand a conversation. His faculties were impaired from sickness in childhood. There was testimony that his mental condition was bad. Many incidents in his life were related which could be explained only upon the theory that his mind was deranged. At times he would manifest great excitement with no apparent cause. He would form and act upon conclusions of fact which had no foundation in truth. Members of his family had undertaken to look after business transactions for him on the theory of his want of capacity. He had been charged with lunacy. He grew greatly excited about imaginary lawsuits. Experts as well as non-experts testified to his insanity. The expert described him as an imbecile with delusions and declared that at the time of the commission of the offense he did not clearly know the difference between right and wrong, did not realize the consequences and that his actions were not those of a normal man. On cross-examination the expert introduced by appellant testified that if there was a general rumor that his father and his wife were guilty of illicit relations and that appellant had heard of this rumor and believed that that was the real cause of the separation of his mother and father, such facts would not show a delusion. Subsequently, the State, over appellant's objection, introduced evidence of a rumor of this character existing in the neighborhood some years before the homicide. The court in qualifying the bill says that he permitted this testimony to meet that of the expert above mentioned and refers to the testimony of C.W. Schmidt, a State's witness.
Schmidt was a justice of the peace, a close neighbor of appellant, *Page 478 and on the day on which the homicide took place had taken the appellant to town with him in his buggy. On his way back they stopped at appellant's sister's house, and appellant had a talk with his sister, which the witness did not hear. After this talk appellant told the witness that he had learned that his parents had separated and that it bothered him; that he was getting dizzy and everything was turning round and that his wife was the cause of it; that he had just learned that his parents had separated and that his wife was the cause of it; that his old father and mother had separated, and it troubled him; that on their way home they met appellant's uncle, and appellant got out of the buggy and talked to him. Afterwards he got back in the buggy and simply said: "This is too bad." This is about all the conversation that took place on the route home except that appellant said: "You got your paper, and I didn't get mine"; and then said he understood that it was because of the condition of the mail route. That when he got home he got out of the buggy without saying a word, and the same witness testified also that on one occasion before he had been called on by appellant's wife to go and hunt him. He had gone off with a gun, and after searching for him for some time they found him standing in the field with a gun in his hand, and he wouldn't give it up until one of the parties pretended he was going to shoot a rabbit, got the gun and fired at the imaginary rabbit, and he then took the appellant home. That on another occasion appellant had come to him and said that his wife and mother had filed a complaint against a person named and to prove it produced a paper, which the witness examined and found to be a deed to lands. Without going into detail, this witness testified to many acts which indicated an abnormal mind. The witness said that there was a rumor that appellant's mother accused his father of having improper relations with appellant's wife and that appellant told him about it, this conversation taking place the day of the homicide after appellant had stated that he had received the information from his sister that his father and mother had separated and that his wife was the cause of it. This conversation is the only thing we find in the record which would indicate that appellant knew of the rumor that was referred to in the cross-examination of Dr. Greenwood except that of the witness H.A. Schram, who testified that there was such a rumor several years before the homicide and that he thought appellant knew of it. It is quite doubtful whether this testimony or that of Schmidt would have been such evidence of appellant's knowledge of the rumor as would justify admission in evidence. The inference from Schmidt's testimony is more natural that he learned this in the conversation with his sister, and that of Schram is a mere opinion. We doubt the admissibility of this evidence under the circumstances. The rumor would manifestly not be admissible unless appellant's knowledge of it was proved by direct or circumstantial evidence. Considering the physical defects of appellant, such a rumor might have existed without his knowledge. Rumors *Page 479 are not admissible to prove facts. 16 Cyc., p. 1213; McClain v. Elder, 23 SW. Rep., 757 Where known to a defendant in a criminal case and where they relate to relevant matters, they may become admissible and in this case we think would be admissible if knowledge of their existence on the part of appellant was satisfactorily shown in evidence. In connection with this bill, however, we will say that it does not show reversible error even if the rumor was not admissible for the reason that the same fact was proved without objection by another witness.
There are several bills preserved to the argument of counsel. One of these was a strong appeal to the jury to convict the appellant even if they believed him to be insane. The court in his very carefully prepared main charge had instructed the jury that if appellant was insane or deranged to an extent that he was unable to know the difference between right and wrong as to the particular act in question, to acquit him. The argument amounted to an appeal to the jury to disregard this charge. At least it was subject to that construction. As quoted in the bill it was as follows:
"Gentlemen, you can go out and find this defendant guilty of murder and send him to the penitentiary, and the law is if you send him to the penitentiary he and his folks can call for a trial charging him with lunacy in the County Court and put him in the asylum if the jury find he was insane, because you can not put an insane man in the penitentiary, but if you should turn him loose, how do you know he will ever be tried for insanity and he might go back up where he lives and do the same thing over again, or kill his children."
The court in his qualification of the bill states that he regarded the argument as proper, based on the evidence in the case.
This court in a unanimous opinion written by Judge Ramsey, on motion for rehearing in the case of Smith v. State, reported in 55 Tex.Crim. Rep., discussing the same question upon facts peculiarly similar to those involved in the present case, held that the argument required a reversal of the case although there was a charge withdrawing it from the consideration of the jury. From that opinion we take the following quotation:
"As stated in the original opinion, the appellant made what seems to us to be a very strong showing of insanity. The facts of the burglary were proven beyond doubt. The only defense for all practical purposes was that of insanity. Therefore, it was of the highest importance that this issue should have been, as it was, fairly submitted to the jury, and that in the discussion thereof there should have been no such departure from the rules of fair debate as would have illegally imperiled or weakened the defense. . . . The State's attorney made the statement to the jury, as set out in the bill, as follows: `I want a verdict of guilty in this case, because I do not want you to set a precedent in this county for turning people loose on a plea of insanity. If you turn this defendant loose, then these lawyers, like Stafford and Geddie will be pleading insanity for everybody that is prosecuted, and *Page 480 if you are going to turn this defendant loose you had just as well tear down your courthouse and burn your docket.'"
The discussion of the matter by the court in the opinion mentioned and the review of the authorities therein referred to aptly apply to the record in this case. Other cases in point are: Crow v. State, 33 Tex.Crim. Rep.; Jenkins v. State,49 Tex. Crim. 457; Murmutt v. State, 67 S.W. Rep., 510; Patterson v. State, 60 S.W. Rep., 560.
The opinion written in this case by the dissenting member indicates that the argument was made in response to an argument by appellant's counsel. We fail to find this statement in the elaborate qualification of the bill.
Another point raised by this bill, as well as by bill No. 26, is that involving the rule of the trial court which prohibited the counsel for the appellant to make his objection to the improper argument or State's counsel in open court and requiring that such objection be made in a whisper to the trial judge. While the judge trying the case has large authority to make rules for the government of his court which are not inconsistent with statutory or constitutional provisions, or the rules made by the Supreme Court, and it is highly commendable that such action should be taken in order that decorum may be maintained and that the litigants and attorneys may know in advance the rules they are expected to observe, we are inclined to believe, however, that in making and enforcing the rule in question the trial court exceeded his authority.
The right to be heard by counsel and a speedy public trial is guaranteed by the Bill of Rights. Art. 1, sec. 10, Constitution. While recognizing the sound and wholesome discretion vested in the trial judge in the conduct of trials, the appellate courts have been careful in safeguarding these constitutional rights. Patterson v. State, 60 S.W. Rep., 560; Reeves v. State,34 Tex. Crim. 483; Roe v. State, 25 Texas Crim. App., 33; Lott v. State, 18 Texas Crim. App., 627.
The cases mentioned above in which reversals have resulted from improper arguments are but illustrative of the practice in this court as will be indicated by numerous authorities cited under article 724, Vernon's C.C.P. To bring the ruling of the trial court before this court for review, a bill of exceptions is generally required. Art. 744, C.C.P. And this is true with reference to the argument of attorneys. Vernon's C.C.P., p. 541, subdiv. 28, and cases cited. By articles 2066 and 2067, Revised Civil Statutes, provision is made for the preservation of a bill of exceptions showing the ruling of the court by the testimony of bystanders where the counsel presenting the bill and the court fail to agree as to what proceedings took place. See decisions of this court construing these statutes. Vernon's C.C.P., p. 558, subdiv. 39; Washington v. State, 58 Tex.Crim. Rep., 120 S.W. Rep., 917; Wooten v. State, 57 Tex.Crim. Rep., 121 S.W. Rep., 703.
It is self-evident that a compliance with the terms of these statutes *Page 481 would be impracticable under the operation of the rule referred to in the bill of exceptions under discussion. Under its operation none but the trial judge and the attorney whispering the objection to the judge would be in a position to know what objections were made and to what subject matter they related or what ruling the court made thereon. So that if in preparing a bill of exceptions there was a disagreement between the attorney and the trial judge as to the terms of the objection or its subject matter or ruling, it would be futile for the attorney to call upon bystanders to settle the dispute, because they would be perforce of the rule in ignorance of the proceedings, and the litigant would be driven to accepting the bill of exceptions in the terms that the court prepared it, or consent to such qualification or modification of it that the court might make.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.