Appellant was prosecuted and convicted of murder, and his punishment assessed at death, from which judgment he prosecutes this appeal.
No one saw the actual shooting, now living, other than appellant, and he, as he had a right not to do, did not testify in the case. Appellant had married Catarino Morales, and is charged with having killed a sister of his wife, Isabel Morales, a fifteen-year-old girl. As tending to show a motive for the killing, the father of the two girls, Nicholas Morales, testified that on the day of the homicide he had a conversation with the defendant. That in this conversation he, the witness, told appellant that the girl Isabel had told him that he, defendant, had said to her, "if she, Isabel, would not run away with him he would kill her, and that if she gave away any of the secrets they had between them, he would kill her," when appellant asked if he had any proof in regard to the matter, and when told that the father had, appellant replied, "Well, we will go to law about it." The girl was killed that evening in the field while she was at work. This conversation was objected to, but the court did not err in admitting it as it clearly tended to show the motive of appellant in killing deceased. *Page 560
Appellant also objected to a conversation had between appellant and Gregorio Valdez shortly after the shooting. Valdez says he heard of the shooting and went to appellant's home, and asked why he had killed the girl, when appellant replied, "In Mexico they are killing lots of them — why can't I kill one?" This was an admission that he killed the girl, and was admissible to prove that fact. It is not contended that he was under arrest at that time — in fact, it is shown by all the testimony that he was not. However, when the testimony was admitted, appellant's counsel cross-examined the witness in regard to this statement, asked the following questions, and elicited the following answers thereto: "Q. State exactly what words you used in that question? A. When I got to the house he was in bed, and I says: `For God sake — Guerrero, what have you done?' Q. Now, was this answer about killing so many Mexicans in Mexico and about him having a right to kill one, was that the answer to that question — `For God's sake, what have you done?' A. That's what he said, — that's all he said to him."
The State on its direct examination had not elicited the question propounded by appellant to the witness, but merely the statement of defendant, and if the question, "For God's sake, what have you done?" was hurtful, it was elicited by appellant on cross-examination in answer to a direct question.
The defendant's plea was insanity, and he introduced several witnesses to show that the relatives of his mother were insane; that on one occasion he himself attempted to commit suicide, and other facts and circumstances were introduced by defendant on this issue. The State introduced a number of witnesses who testified that appellant was sane. Among other things the record discloses that while the trial was being conducted, and the jury was in the box, appellant "would throw his head about, shake his hands and shuffle his feet." The State introduced witnesses who testified that when the court was at recess and the jury was not present appellant would cease to "throw his head about, shake his hands and shuffle his feet." These antics in the presence of the jury were performed evidently to assist his plea of insanity, and there was no error in permitting the State to show that they did not take place when he was not in view of the jury.
It is shown by one bill that on one occasion the sheriff did not take the handcuffs off the prisoner until the jury was being brought in and were taking their seats. There is nothing in the bill to show that the jury saw the sheriff take the handcuffs off of appellant. The court says it is usual and customary in bringing prisoners from the jail to the courtroom to handcuff them, but when in the courtroom they are taken off. Only in this one instance did the jury arrive in the courtroom before the handcuffs had been removed, and in this instance it is not disclosed that the jury saw that the prisoner was handcuffed. Prisoners should never be kept manacled while being tried, unless absolutely necessary, but the state of facts shown by this bill do not present error.
The only objection urged to the court's charge when presented to counsel for inspection was, "that those paragraphs presenting the issue *Page 561 of insanity were erroneous in that said charge is upon the weight of the evidence, in that it specifies that such testimony must be introduced before a jury can believe that the defendant was insane at the time of the alleged commission of the offense." We suppose this objection is leveled at that portion of the charge which informs the jury, "that every man is presumed to be sane until the contrary appears to the satisfaction of the jury." That is the law in this State, and the court did not err in so instructing the jury. The burden of proof is on the defendant to show that he was insane at the time of the commission of the offense. In addition to this the court gave the special charge requested by appellant on this issue.
The court did not err in refusing to give the special charge presenting the issue of manslaughter. The only evidence in this case which would indicate the reason appellant killed deceased was, that he wanted her to run off with him and she would not do it; that there were "secrets" between the two he did not wish her to disclose to her parents, and had threatened to kill her if she did tell them, and that she told her parents about the threats, and he feared she would also disclose the "secrets." The girl's father had questioned him about this matter some three hours before the homicide, and the facts would show he went to her while she was at work in the field, placed the muzzle of a forty-five caliber pistol near her temple and bored a hole through her head, she dying instantly. There was no issue of manslaughter in the case. As appellant admitted to Gregorio Valdez he had killed the girl, the court did not err in refusing the charge on circumstantial evidence. It is only when the evidence is wholly circumstantial that such a charge is required.
The other special charges, in so far as they are the law of the case, are fully covered by the court's charge.
In another bill the remarks of the district attorney are complained of. The bill shows that the district attorney made the following remarks: "What did you say when the father of the murdered girl said: `Benigno, why did you say to Isabel that if she did not run away with you, you would kill her, and if she told what you said, you will kill her?' The district attorney then turned and faced defendant, leveled his finger at him and said: `Did you deny it? No. You know if it had not been true that you would have denied it then,' and turning to the jury the district attorney continued: `And, you, gentlemen of the jury, know he would have denied it to his father-in-law, but instead, defendant said, `If you can prove it go to the law.'" These remarks, as the bill plainly shows, referred to the conversation had between appellant and the father of the girl at the noon hour, and could not be construed into referring to the failure of the defendant to testify.
The only other matter presented by the record that we deem it necessary to discuss is the one that contends that the jury was permitted to separate during the trial of the case. The bill presenting the evidence was not filed until long after the adjournment of court for the term. It should have been filed during term time to authorize us to consider it. *Page 562 But we have read the evidence heard. It appears that the jury room is upstairs over the District Court room, and that the stairway leading to the jury room is some seven or eight feet from the door of the District Court room. That during a recess of the court the jury retired to their room in charge of an officer. The jury came down the stairs and started to take their seats, when it was discovered that only eleven were present. The sheriff started up the stairway after the other juryman, when he was seen coming down. He explained that he was in the toilet when the other jurymen started downstairs, and he came on as soon as he got out of the closet. The time from the time the eleven jurors came downstairs to the time the last juror was coming down is estimated at from thirty seconds to a minute and a half. The record discloses it was impossible for him to have met any person. This in law would not be deemed a separation, and the court did not err in so holding.
The judgment is affirmed.
Affirmed.