The offense is rape by force; the punishment, death. After an evening of drinking and after being refused the privilege of taking one of the girls home, appellant by chance, it seems,, observed the prosecutrix starting her car on a parking lot. Appellant first brutally beat prosecutrix, a married woman eighteen years his senior, then forced her on the back seat of her car and ravished her. At the time of the commission of the offense, appellant seems to have been supporting himself by that old and *209well-known trade of purse snatching. He took the personal belongings of prosecutrix.
Fine police work soon apprehended appellant and wove a compelling case against him. Appellant confessed; such confession was effectually corroborated, and he admitted his guilt during the course of the trial. Two conscientious court-appointed attorneys capably presented appellant’s defense of insanity and proof of his low mentality.
The court properly submitted the defense of insanity.
Bill of Exceptions No. 1 complains of the court’s refusal to admit certain school records from the Waco Public Schools contained in what is denominated for the purpose of the Bill as Defendant’s Exhibit No. 5. Nowhere in the record or in the bill is such an instrument to be found. For this court to pass upon a bill to the exclusion of evidence, it must have before it, in the bill, the excluded evidence. Otherwise, there is nothing for this court to pass upon, and the bill does not reflect error. Rodriquez v. State, 104 Tex. Cr. R. 572, 286 S. W. 226.
The witness, Marie Riddle, according to this bill, testified at length from the exhibit. If the exhibit itself contained matters other than as shown by the testimony of the witness and which were subject to the objection made by the state, the court properly excluded the exhibit.
On the other hand, if we are to assume that the exhibit contained only the facts testified to by the witness, then we cannot agree with the conclusion of the trial judge that their admission would have materially altered the verdict. So construing said bill, we are in a position to pass on the question of whether the introduction of such exhibit would have materially altered the verdict and are not bound by the trial court’s conclusion. We say this especially in view of the record which shows an adjudication of appellant’s feeblemindedness subsequent to the dates covered by the exhibit.
Bill of Exceptions No. 2 complains of the court’s failure to submit a requested charge to the effect that evidence of feeble-mindedness should be considered by the jury in mitigation of the penalty. The charge as requested was not a proper statement of the law, but was a charge on the weight of the evi*210dence and, therefore, should not have been given. Perez v. State, 146 Tex. Cr. R. 241, 172 S. W. 2d 314.
Bills of Exception Nos. 3, 4 and 6 complain of jury misconduct, either as to separation or conversations with unauthorized persons. In connection with those bills dealing with telephone conversations by the jurors, it is to be noted that a hearing was had on the motion for new trial, and all parties, both the jurors and those to whom they talked, testified that there had been no discussion of the case. Appellant in his brief complains that neither the long-distance operators, who took the calls nor the individual in Mr. Grace’s office who first took the juror’s call and then called Mr. Grace to the telephone, had testified on the motion for new trial.
No actual injury is shown, but appellant contends that injury should be presumed. This is not available to him, since his attorneys gave the officers in charge of the jury their consent for such telephone calls to be made. If actual injury or misconduct had been established, this consent would not have prevented them from showing it, but it certainly should prevent them from claiming a presumption of injury.
It is contended in connection with those bills dealing with the conversations with unauthorized persons that it would be impossible for the state to rebut the presumption of injury which arose once a conversation was shown to have taken place. Appellant seems to agree with the rule that a presumption of injury arises when the defendant merely shows that a member of the jury spoke to an unauthorized person, but he says in effect that this presumption cannot be rebutted, and we should not believe the juror or his wife when they testify as they did that they talked about family affairs and not about the case. His reasoning seems to be that both the juror and his wife would always be in fear of being held in contempt of court, and therefore would not tell the truth about their conversation.
This court could not base its decisions upon such reasoning. We feel that the state fully discharged its duty in rebutting the presumption, if any, which arose out of the acts complained of in Bills of Exception Nos. 3, 4 and 6.
Bill of Exceptions No. 5 fails to show a communication with any member of the jury. At most, it shows that a woman was seen standing at the door of the jury room. This reflects no error.
*211Bill of Exceptions No. 7 complains of the court’s failure to grant a new trial on account of newly discovered evidence. It contains affidavit of appellant’s two court-appointed attorneys showing the diligence exercised by them in the preparation of their client’s defense. Following this necessary predicate, they set forth affidavits of laymen who had known appellant prior to the rape and that of a doctor who had examined him following the trial.
The only serious question presented is whether a new trial should have been granted so that another jury might hear the testimony of Dr. Grice, a specialist in nervous diseases, who examined appellant after his conviction. His testimony appears in the record in the form of an affidavit wherein he states that in his opinion appellant was of unsound mind on the date of the offense and the date of trial. Nowhere therein does he state that in his opinion appellant was legally insane; that is, that he did not know the difference between the right and wrong, or that he did not understand the nature and consequences of the act charged against him. These are the tests accepted to determine accountability under the criminal law.
In the state’s controverting answer to the motion for new trial, we find affidavits from Dr. McCollum, a general practitioner, and Dr. Powell, a psychiatrist, both of whom examined appellant prior to the trial. Each stated that in his opinion appellant knew the difference between right and wrong and that he understood the nature and consequences of his act.
We are called upon to determine whether the trial court, who had heard the appellant testify, had heard doctors and laymen during the course of the trial testify on the question of whether the appellant knew right from wrong and had these affidavits before him, abused his discretion in failing to grant a new trial. We are not prepared to hold that he did.
Judge Lattimore in Covin v. State, 130 Tex. Cr. R. 285, 93 S. W. 2d 428, said in effect that a halt must be called somewhere and that a new trial cannot be granted every time an alienist is discovered who will testify that appellant is insane.
Again we commend the attorneys for capably and conscientiously representing their court-appointed client.
Finding no reversible error, the judgment of the trial court is affirmed.