At the last term of this court this case was affirmed, the court refusing to consider the bills of exception, because they bore no file marks and the record did not disclose when they were presented to the court, nor when filed with the clerk. Since then appellant has filed a motion for rehearing, and produces evidence that the bills were filed on the 15th day of February, 1912, *Page 583 (being within the time permitted by law) and the clerk certifies that the transcript is incorrect, and the bills in fact bear this file mark, consequently appellant is entitled to have the questions presented by the bills reviewed, and three of them present errors that will necessitate a reversal of the case.
Appellant's principal defense was that he was insane at the time of the commission of the offense; that he had brooded over the death of his brother, until he was mentally unbalanced and in that condition of mind that he did not know right from wrong. He moved to continue the case on account of the absence of Clinch Franks and Mrs. Clinch Franks. By Clinch Franks he states he expects to prove, and the witness would testify, that he had known defendant for a number of years, and that prior to the death of his brother, defendant was of a cheerful, happy disposition, and since the killing of his brother there had been a marked change in his conduct, disposition and behavior; that he had brooded over the death of his brother to such an extent that his reason had become dethroned, and his mind unbalanced; at the time of the killing defendant did not know right from wrong, and was not responsible for his acts.
By the witness Mrs. Clinch Franks he states he expects to prove, and that she will testify that she is a sister of defendant and has known him all of his life; that at the time of the killing defendant's mind was in such condition as to render him incapable from knowing right from wrong; that he was insane.
It was shown by defendant that the witnesses had been duly summoned, and by the testimony of the attending physician that Mrs. Franks was sick, and that he was daily expecting her to be confined; that he had waited on her several times when she gave birth to children, and in each instance it had very near caused her death, and it was unwise and unsafe for her husband to leave her bedside. That the woman could not be brought to the courtroom without endangering her life, and her husband should not be brought.
It may be that the court had but little faith in this defense, but the more meager the testimony on this issue the greater reason for defendant to have all the testimony on the point he desired and had used due diligence to secure, and under the showing made in this case we think the court erred in not granting the continuance.
In another bill it is shown that a witness was permitted to testify that prior to the killing deceased was "kneeling down at the altar crying." As defendant was not in the church and could not and did not know what deceased was doing at that time, and it was not an issue in the case, this was error. Of course, when deceased came in sight of defendant, then the acts and conduct of both parties would be admissible, but the acts and conduct of deceased, prior to the killing and having no relation thereto, should not be admitted.
It appears that shortly after the killing defendant was arrested, *Page 584 and while under arrest made a statement or confession to the county attorney which was reduced to writing, but the writing was not produced on the trial of this case, and the county attorney was permitted to testify as to the contents of the confession. A number of objections were urged to the introduction of this testimony, and on another trial before this testimony will be admitted it should be shown that all the requirements of article 790, as amended by the Acts of the Thirtieth Legislature (Chap. 118) had been complied with; otherwise the testimony will be inadmissible. (Henzen v. State, 62 Tex.Crim. Rep., 137 S.W. Rep., 1141.) If this proof is made, then if the written confession has been lost, oral proof of its contents will be admissible, if the evidence shows its loss and a diligent search has been made for it, and it can not be found. This much is said, as the case is reversed on other grounds, and the bill is in such condition that from it we could not tell whether all this proof was made or not; in fact one of the objections urged is that the "absence of the written statement had not been accounted for in a way to render secondary evidence of its contents admissible."
Many of the remarks of the prosecuting officers in their address to the jury were objected to, it being alleged, among other things, that the county attorney told the jury: "that they ought to hang the defendant, if they did not do so and sent him to the penitentiary the Governor on some flimsy pretext would pardon him, and he would assassinate some other citizens of the State." Of course, these remarks were highly improper, but as the jury did not inflict the death penalty, they would not present reversible error, but attention is called to the matter, that on another trial the prosecuting officers will confine their remarks to the discussion of the evidence adduced on the trial. Courts and court officers should not reflect in this way on the chief executive of the State. He has certain functions conferred by law on him, and that he will properly discharge them should always be presumed. At least it is improper to urge a more severe penalty than the jury might otherwise feel inclined to inflict, on the assumption that some future governor would not properly discharge the duties of his office.
The manner of selection of a special judge we do not deem it necessary to discuss, as this matter will not likely arise on another trial of the case, and the other matters complained of present no error. However, on account of the errors above pointed out, the motion for rehearing is granted, the former judgment is set aside, and the judgment of the court below is reversed and the cause remanded.
Reversed and remanded. *Page 585