Much of appellant's motion is devoted to a discussion of what he claims to have been an erroneous ruling in regard to his bill of exceptions No. 13. It appears that upon notice to appellant and an opportunity for a hearing given both sides, the learned trial court concluded that his approval of said bill had been fraudulently obtained, and the bill was corrected to speak the facts. Appellant's counsel does not seem to have been present at such hearing and there was no opposition to the court's correction of said bill. We perceive no error in this matter. We do not think the authorities cited by appellant support his contention. If appellant had any ground for contesting the state's effort to correct the record, the time for him to have presented his contest was when he was notified and given opportunity to appear before the trial court. To attempt to combat the conclusion reached by the court below, by statements in the brief or in the motion for rehearing in this court, is too late.
The court allowed evidence of the fact that appellant was of a low order of mentality, but declined to instruct the jury regarding same. Complaint is here made of the court's failure to charge the jury that they could consider this testimony in determining the penalty. In the absence thereof, if the trial court had undertaken to select parts of the testimony and tell the jury that same was offered for this purpose or that, it would most likely have been deemed on the weight of the evidence.
Appellant's bill of exceptions No. 6 wholly fails to bring before us any facts purporting to appear in what is referred to as appellant's first confession; and presents no support for the claim now made that the trial court erred in not charging the jury relative to said first confession. We are unable to find that appellant excepted to the charge of the court for any failure in this regard.
We are of opinion that proof of the killing of appellant's wife and her mother, prior to the killing forming the basis of this prosecution, and on the same day, was admissible as part of the state's case in chief, as establishing motive. In such case it is not necessary that the charge of the court limit the purpose of the admission of such testimony. Terry v. State,45 Tex. Crim. 272. Pannell v. State, 54 Tex.Crim. Rep..
We have considered each ground of the motion and find ourselves unable to agree with any of same. The motion for rehearing is overruled.
Overruled. *Page 235