The offense is murder; the punishment, death.
This is the second appeal, the former judgment of conviction having been reversed by this Court because of an error in the charge. See Boss v. State, 101 S.W.2d 253. The first trial was held in DeWitt County on a change of venue from Harris County. The present appeal is from Caldwell County where the case was tried on a change of venue from DeWitt County.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed R. W. Albert by striking and beating him with a piece of iron and by cutting and stabbing him with a knife.
The testimony of the State that, on the 21st of March, 1936, appellant killed and robbed deceased was uncontroverted. Appellant defended on the ground that he was insane, and on that issue witnesses testified pro and con.
The State introduced appellant's confession in evidence, which, omitting the formal parts, reads as follows:
"My name is Vince Boss. I am 20 years of age. I reside at __________. On last Friday, March 20th, 1936, I tried to borrow three dollars from Harry Poole. He was in his office at the Happy Hour Theatre. He said he didn't have it. I had about seven dollars at that time. I went on down to Pete's Restaurant on Congress and later on Gussie Miller and Gladys Sinclair came down there. They got in a cab and went home and I caught a cab and went right behind them. I just flagged a cab. I think it was a 2121; it had a white streak on it. I flagged the cab in front of Pete's. I followed them to 1901 Rusk Avenue. That was two o'clock Saturday morning. Gladys Sinclair, Gussie Miller and Mrs. Ted Miller and myself, the four of us stayed in the room there that night. I got up the next morning and started for Bryan. I intended to catch the driver of the Craft truck in Bryan but I didn't get there, so I stopped at Hempstead and he came on through. I got on the truck with him and came toward Houston. We left Hempstead around five o'clock. We made all the stops on the way where he delivered goods. I had ridden with him twice from Bryan and once from Hempstead on each Saturday before the Saturday the 21st of March. I went up to Hempstead with the intention of going on to Bryan to get my suit. I intended to catch the Craft driver at Bryan, but I didn't make it to Bryan and stopped at Hempstead. On the way back when we had passed Fairbanks a couple of blocks, he got out of the car to answer a call of nature, and the side *Page 595 door was open. While he was pulling up his trousers he dropped a quarter, and he looked for it, and when he stooped down, I knocked hell out of him with a piece of iron. The piece of iron was in the truck since last Saturday. He carried the iron in the truck for a weapon. When I struck him with the piece of iron, he just squatted. I hit him several times and put him in the truck and hit him the rest. I hit him after he was in the truck. I locked him up and then started the truck off. I put him in the side door of the truck. After I had started to driving away with the truck where I had first knocked him in the head with the iron, I thought I smelled something burning. He was in there crying 'Let me out.' I hit him with the same piece of iron. It had not fell off the fender. When he fell back I cut his neck twice. I then shut the door and drove on into Houston and turned off on Shepherd Drive and stopped the truck by the side of the road and left the truck there with the man in it. When I cut his throat I then took his money. I took the money out of the leather folder and threw the folder away. I was driving when I threw the folder away. I didn't count the money until I came to town. After coming to town, I went to the Southern Hat Company on Travis St. and bought a hat and shirt and changed them there. The reason that I changed was because my shirt and hat had blood on it. I tried to get it off but I couldn't. The money the officers got from me at the Ben Milam Hotel was the money I took from the man I hit. I have read the above and foregoing statement and it is true and correct."
Appellant excepted to the definition of the term "voluntarily" as follows: "The defendant objects and excepts to the first paragraph of said charge, and especially to that portion wherein the court defines the term voluntary for the reason that the definition as given is confusing, and is calculated to mislead the jury." We quote the charge: "The term 'voluntarily' means done by design or intention; purposed; intended." We see nothing in the exception sufficient to apprise the trial court that it was appellant's position that said charge should have been qualified to the extent of advising the jury that a person of unsound mind would not have the ability to form a design or intent. The exception being insufficient, it is unnecessary to determine whether such an instruction would have been proper. Article 658, C. C. P., requires that each ground of objection to the charge be distinctly specified. An objection is insufficient when it fails to point out in what particular an instruction is erroneous. Clinton v. State, 104 S.W.2d 39. In any event, the court submitted an adequate instruction on the law of insanity, and *Page 596 pertinently told the jury to acquit appellant if he was insane. See Williams v. State, 34 S.W.2d 886.
Appellant excepted to the instructions on murder and murder without malice on the ground that the defense of insanity was not "referred to and made a part thereof." In other words, it is appellant's contention that said charges eliminated from the consideration of the jury the subsequent instructions on insanity. It has already been observed that an adequate instruction on the law of insanity was submitted to the jury. The court gave in charge the approved definitions of malice and murder without malice. In applying the law of murder to the facts, the jury were required to believe that appellant was actuated by malice. The law of murder without malice was also given sufficient application. The charge must be viewed in its entirety, and when thus considered it is obvious that appellant's contention that the defense of insanity was eliminated from the consideration of the jury can not be sustained. See Brookins v. State, 158 S.W. 521. We quote that part of the charge submitting murder with malice, as follows:
"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant Vince Boss, on or about the 21st day of March, A.D. 1936, did unlawfully, voluntarily, and with malice aforethought kill R. W. Albert by any of the means charged in the indictment, then you will find the defendant guilty of murder with malice aforethought, and assess his punishment at death, or confinement in the penitentiary for life, or for any number of years not less than two, unless you find him not guilty under subsequent instructions in the charge."
The qualifying clause — "unless you find the defendant not guilty under subsequent instructions of the court in this charge" — also appears in the instruction submitting murder without malice.
We pretermit detailed discussion of the exceptions to the charge on insanity. The issue was adequately submitted in a form consistently approved in the decisions of this Court.
Our examination of the record leads us to the conclusion that appellant was accorded a fair trial.
The judgment is 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. *Page 597
ON MOTION FOR REHEARING.