The offense is assault to murder with malice. The punishment assessed is confinement in the State penitentiary for a term of five years.
Appellant challenges the sufficiency of the evidence to sustain his conviction. The State’s testimony, briefly stated, shows that on the 13th day of May, 1939, the appellant and two of his sons came to the town of Midland. S. L. Box, the injured party, was also in town. At a time when the injured party was on the street in front of a barber shop talking to R. S. Culp and Charles Hedges, appellant’s son, Herman, walked *147up to Mr. Box, asked him what he was doing in town, struck him and knocked him down. About this time appellant appeared on the scene and shot Mr. Box twice with a pistol. Appellant did not testify.
He offered in evidence a judgment of the County Court of Grayson County rendered on the 26th day of February, 1926, adjudging him to be a lunatic. His son, W. S. Gunter, testified with reference to appellant’s mental condition that his father was excited after the difficulty. That his father was nervous, but outside of that he was as calm - as anyone. He stated that his father had been in the insane asylum twice; that for the last few years he had been well physically, except that he worried about his son who had been killed. That he was perfectly normal at all times, and was in his right mind except that he grieved about the loss of his boy. That he was like any other man would be who had lost a son.
His daughter-in-law testified among other things as follows: “I have been in the family almost four years. * * Herman and I have been closely associated with his family. * * I have talked to my father-in-law on many occasions. He has been in ill health for some time, having trouble with his back. * * From my conversations with my father-in-law and from observing him and his conduct I believe he knows right from wrong and I tell the jury that he knows and did at the time know the difference between what is right and what is wrong. * * *”
It is true that when a defendant upon trial for a criminal offense introduces a judgment by a court of competent jurisdiction adjudging him insane, the presumption obtains that his insanity continues, and the burden rests upon the State to prove his sanity beyond a reasonable doubt at the time of the commission of the offense. See Glover v. State, 125 Tex. Crim. Rep., 605, 69 S. W. (2d), 136, Davidson v. State, 109 Tex. Crim. Rep., 251, 4 S. W. (2d), 74. The court so charged the jury and no exception of any kind seems to have been addressed to the charge. Under the facts of this case, we think the testimony adduced as to his sanity was sufficient to overcome the burden cast upon the State by the introduction of the judgment. See Hunt v. State, 33 Tex. Crim. Rep., 252; 26 S. W. 206.
We find in the record what are denominated as appellant’s bills of exceptions. These bills are not included in or made a part of the transcript. They do not appear to have been certified by the clerk of the trial court as being authentic; consequently they cannot be considered by us. See Art. 760 C. C. P., *148Magee v. State, 136 Texas Crim. Reports, 184 (186) ; 123 S. W. (2d), 906. Appellant also complains that the trial court erred in overruling his second application for a continuance. He does not appear to have excepted to the action of the trial court in overruling said motion. Consequently the matter is not properly before us for review. See Anderson v. State, 101 Tex. Crim. Rep., 645, 276 S. W. 906; 4 Tex. Juris, p. 93, Sec. 60; Branch’s Ann. P. C. Sec. 304, p. 183 and authorities there collated. Appellant also insists that the trial court erred in overruling his motion to quash the jury panel. It does not appear that an exception was taken at the time to the action of the court in overruling said motion. Moreover we notice that appellant set up in said motion that after the jurors who tried him had been sworn and the remaining ones on the panel dismissed, appellant for the first time raised a complaint that one of the jurors was a personal enemy of his. Appellant’s attorneys seem to have examined all of the prospective jurors on their voir dire, and no objection whatever was addressed to the presence of the objectionable juror. Such matter presents no error. See Baker v. State, 3 Tex. App. Rep., 525, 532, Black v. State, 46 Tex. Crim. Rep., 590, where it is stated: “It is also well settled that where a juror has been selected, a challenge can not be interposed for a cause known to the party seeking to interpose the challenge at the time of impaneling the juror.”
See also 26 Tex. Juris., p. 634-637.
All other matters complained of by appellant have been carefully examined by us and are deemed to be without merit.
No error of a reversible nature appearing in the record, the judgment of the trial court 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.