Appellant was convicted in the district court of Kendall county of murder, and his punishment fixed at fifty years in the penitentiary.
Appellant was charged with the murder of his wife, and there is nothing in the record suggesting any doubt or denial of the fact that on the date alleged she met her death by being shot with a pistol. Beside appellant and his wife, their little daughter and appellant's brother were in the house at the time and both testified substantially to the fact that appellant shot his wife.
There are seventeen bills of exception in the record, each of which has been carefully examined and considered by us but in none of which we observe any error calling for a reversal. By one of said bills of exception complaint is made of the court's failure and refusal to submit the issue of an accidental killing. That it is not necessary to submit any issue not raised by the testimony is well settled. Appellant placed upon the witness stand his brother, Grant Wren, who testified that he was in the house of appellant at the time of the shooting. This witness testified that he saw appellant go to the bed and reach under the pillow or bedding for the gun and that *Page 137 the pistol went off; that he could not state whether appellant was firing it or not because he was not paying that much attention. He said that appellant was drunk. This witness denied that appellant and his wife were quarrelling, and on cross-examination testified that when appellant got the pistol he, witness, was leaving and went out through the kitchen door and that at the time the shot was fired he was going on outside and paid no attention to his brother or deceased. The following quotation may be taken from his testimony:
"I heard the shot as I went out of the kitchen, as I went out through the back way through the kitchen I heard a shot fired that's true and that is the way I testified before the grand jury, that is the story I told the grand jury the day after the killing. I don't remember seeing Christine anywhere then, I don't remember whether she was in the room or not. I didn't tell you what Charlie and Addie were talking about just before Charlie got the pistol. No, sir, I don't remember anything that was said. Yes, sir, the only thing is that I saw Charlie get the pistol from under the pillow or under the mattress and then I was leaving and when I was in the kitchen I heard the shot."
At another place in the testimony of this witness appears the following:
"I didn't know that Addie Wren was killed until after the officers came. I didn't know she was shot. No sir I couldn't see Addie Wren as I was leaving at the kitchen and I didn't see Charlie and I didn't see Addie at the time the shot was fired. As to whether I didn't testify before the grand jury that Addie was fussing at Charlie at the time he fired the shot I said which way they were standing. As to whether I didn't state before the grand jury, `She was fussing at Charlie but made no movement toward him' probably I did make that statement. * * * Now I say that at the time the shot was fired I was in the kitchen going out the back way, well yes sir that is correct; I was going outside yes sir. Q. You were leaving when the shot was fired? A. I don't remember how you asked me, whether she was standing there and in what position, before that or afterwards. Yes sir I say now that when the shot was fired I was in the kitchen going the other way, I was going through the kitchen. Q. Out of the kitchen, to the outer door? A. I don't remember I might have been out of the door. I don't remember just where I was."
This is the only testimony upon which could be based any claim of an accidental shooting, and in our opinion it so far fails to present that issue as to justify the learned trial judge in declining to submit it.
The seven-year-old child of appellant was introduced as a witness for the State. Objection was made to her testimony on the ground that she was too young to know or appreciate the nature and quality *Page 138 of an oath. The examination given her by the learned trial judge is fully set out in the bill of exceptions and from same it appears clear that the child was qualified and we do not think the court below in error in admitting her testimony. The child testified that her mother and father had been fussing and that the mother was sitting on a trunk and her father got the pistol and shot her mother and that her mother ran out of the door and fell. Several witnesses for the State who lived near by testified that they heard the shot and saw the woman fall out of the house.
Appellant seems to place some reliance upon the proposition that the evidence raised the issue of temporary insanity resulting from the recent use of intoxicating liquor. The court fully submitted the law governing such issue. We do not perceive anything arising or presented in any of the other bills of exception calling for discussion.
No error appearing in the record, an affirmance will be ordered.
Affirmed.
ON REHEARING.