Appellant was indicted for murder, found guilty of murder in the second degree and his punishment assessed at nine years in the penitentiary.
The facts would show that deceased had killed appellant's brother, some two or three years prior to this homicide. That deceased had left the county and moved to San Antonio, and went back on this trip to attend the funeral and burial of Elwood Johnson. That after the funeral exercises in the church as deceased started out of the door, appellant fired at him three times, two of the shots taking effect, both being fatal wounds in the opinion of the doctors who were called to attend him. The evidence would show that deceased was weeping and had his hand over his eyes, when the first shot was fired, and the others followed in rapid succession. The evidence for the defendant seeks only to show that appellant was insane at the time he did the shooting, offering proof of no other justification.
There are in the record a number of bills of exceptions, and if we were permitted to review them they might present error, but inasmuch as they bear no file marks; do not show they were ever filed with the clerk of the court, and if they were delivered to the clerk, when they were so delivered. In an unbroken line of decisions this court has held that the bills must show, on appeal, that they had been filed with the clerk, when approved by the judge, and the date of filing must be shown. These bills do not show when they were presented to the judge, nor when delivered to the clerk, bearing no date and no file marks. Consequently we will not review the bills of exceptions. The statute requires that the bills must be filed with the clerk, and filed within a given time, and this must be evidenced by the file marks of the clerk. The record being in this condition we can not review the grounds in the motion for new trial, based on alleged bill of exceptions. *Page 582
The defendant being found guilty of only murder in the second degree, and his punishment being assessed at only nine years in the penitentiary, we will not discuss nor pass on those paragraphs in the motion complaining of the charge on murder in the first degree.
The evidence did not raise the issue of manslaughter, and the court did not err in refusing to charge thereon, and the definition of implied malice is in language frequently approved by this court, and the fact that the court repeated this definition in his charge was not hurtful to defendant. The facts in this case would sustain a verdict of murder in the first degree, and if the court by making the definition of implied malice prominent, aided counsel for appellant in getting the offense reduced to that grade, with almost the minimum penalty, he should not complain. If his client is not insane, as found by the jury, counsel has cause to congratulate himself on the verdict returned.
Appellant complains that the charge on insanity is confusing, disconnected and not applicable to the facts in the case. The charge is not subject to these criticisms, and the grounds are too general to be considered. The complaint that it placed the burden on defendant to prove by a preponderance of the evidence that he was insane, presents no error. This is in accordance with the decisions of this court. Fisher v. The State, 30 Tex. Crim. 502, and cases cited in section 51, Whites' Annotated Penal Code.
The special charges requested, instructing the jury that "if defendant was moved to commit the homicide by an uncontrollable impulse," to acquit him, should not have been given. This question is thoroughly discussed in Leache v. The State, 22 Texas Crim. App., 279, wherein the rule laid down as the true rule is, that the law does not require as the condition on which criminal responsibility shall follow the commission of crime the possession of one's faculties in full vigor, or a mind unimpaired by disease or infirmity; he can only discharge himself from responsibility by proving that his intellect was so disordered that he did not know the nature and quality of the act he was doing, and that it was an act which he ought not to do. (See also Hurst v. State, 40 Tex.Crim. Rep., and cases cited.)
The evidence amply supports the verdict and judgment is affirmed.
Affirmed