The complaint of the refusal to continue a case cannot be reviewed in the absence of a bill of exceptions. See Nelson v. State, 1 Texas Crim. App. 41, and numerous earlier cases therein cited. Many subequent cases are collated in Branch's Ann. Tex. P. C., Sec. 304; also in Vernon's Texas Crim. Stat., Vol. 2, p. 529, note 5. See also Jones v. State, 86 Tex. Crim. 261; Tippins v. State, 86 Tex.Crim. Rep..
The complaint of the refusal to read to the jury the appellant's special charges cannot be sustained for the reason that it is not shown that they were presented to the court before the argument, nor that their refusal was made the subject of exception. See C. C. P., Arts. 737a and 743; Linder v. State, 94 Tex.Crim. Rep., and precedents there cited.
The bills of exceptions composed of a transcription of the stenographer's notes in question and answer form are not shown to have been specifically authorized, are not in compliance with the statute (Art. 846, C. C. P.,) and cannot be considered. Soderman v. State, 97 Tex.Crim. Rep.; Reese v. State, 94 Tex.Crim. Rep.; Jetty v. State, 90 Tex. Crim. 346, and many cases collated in the authorities cited.
The various matters of which complaint is made in the motion for new trial and which are stressed in the application for rehearing, with the exception of the one complaining of the refusal to charge on circumstantial evidence and that challenging the sufficiency of the evidence, are not properly here for review. The rulings of the court in receiving and in rejecting evidence, in order to be *Page 198 reviewed, must be preserved by bills of exception, and the motion for new trial cannot be regarded as a substitute. Art. 744, C. C. P., Vernon's Tex.Crim. Stat., Vol. 2, p. 536, note 20; Holloway v. State, 88 Tex.Crim. Rep.; Begonia v. State, 226 S.W. Rep. 405; Reid v. State, 226 S.W. Rep. 408.
As we understand the statement of facts, before her marriage to the appellant, the deceased had a son, Jesse McDavid, and the appellant had another stepson call McMurry Ramey. Some three weeks before her death, the deceased and the two stepsons left the home of the appellant and went to Duke's Ranch to work, and occupied a house with a woman named Gertrude. Will Jones, a negro man called "Whang", also lived at the house. According to the State's witness McDavid, before the removal to Duke's Ranch, there had been a quarrel between the appellant and his wife. Appellant went to the house in the night time after some of the witnesses were asleep and upon his entry a scuffle took place between Jones and the appellant in which appellant took possession of Jones' pistol after it had been fired several times. Jones and the deceased fled from the house into a corn field which seems to have been very near the house. After they fled, there was evidence to the effect that appellant fired twice into the corn field; that he heard his wife "holler" as though she was hurt; that her body was found by the appellant on the following evening in the corn field, about twenty-two feet from the house. A witness testified that after the shooting appellant went out of the house and upon his return said, "I got one of them; I do not know which."
According to his testimony, as the appellant entered the room he said: "Hey, what are you niggers doin'?" He thought there was a bunch of men in the room. Jones immediately sprang to his feet, took his pistol from under the pillow, and fired at the appellant a number of times. The wife of the appellant ran out of the house and Jones also fled to the corn field. Appellant claimed that he did not know that his wife was shot, and that he discovered her body by accident.
There was testimony about another pistol in the possession of the appellant. One of the witnesses declared that the appellant, immediately after the shooting, said that he was going to raise hell on the ranch.
The announcements of this court are numerous to the effect that where there is direct evidence from any source that the deceased was killed by the accused, a charge on circumstantial evidence is not required, although the intent with which the homicide was committed is to be inferred from circumstances. See Russell v. State, 38 Tex.Crim. Rep., see p. 596; also other cases collated in Branch's Ann. Tex. P. C., sec. 1874, subdivision 1. *Page 199
It is not upon the remark of the appellant that he "got one of them" alone which the State relies as dispensing with the necessity for a charge on circumstantial evidence. That he fired into the corn field where she fled and where she was killed by a pistol shot was direct and definite. The record is void of any cause of her death other than the shots fired by the appellant. As we understand it, the record excludes any theory looking to her wounds having been inflicted by the shots fired by Jones. Her exclamation, "heard by the appellant" after he fired and where the deceased was in the corn field is not to be ignored, but it, with all the other incidents in which the tragedy is set, is to be taken into account in interpreting the meaning of the appellant's declaration that he "got one of them". In the light of the other surrounding facts revealed by the evidence, it is believed that the remarks last quoted must be construed as a declaration admitting that he had killed the deceased. At any rate, in the light of the precedents, we are impressed with the view that the action of the court in refusing to instruct the jury that reliance was had on circumstances alone, and to give the jury a charge on that basis was not a matter demanding or authorizing a reversal of the judgment. See Holt v. State, 9 Texas Crim. App. 582; Crews v. State, 34 Tex.Crim. Rep.; Tooney v. State,8 Tex. Crim. 482.
The motion is overruled.
Overruled.