Appellant has filed a vigorous motion herein complaining of practically the whole of our original opinion herein where we took notice of his bills of exceptions. We have again carefully gone over the record.
In his bill of exceptions No. 1 he complains because of the exclusion of the testimony of Henry Long, who was sworn in as a witness for the appellant, and instructed by the trial court relative to the rule under which the witnesses were placed on motion of the appellant's attorney. The witness violated the rule by remaining in the court room and hearing the testimony of at least one of the witnesses, and the trial court, in the exercise of his discretion, refused to relax the rule and let this witness testify. True this witness was only a character witness, but under the court's qualification we find that the court had warned attorneys to watch out for their witnesses and see that none remained in the court room, and we still do not think that the trial court abused his discretion in refusing to allow this witness to testify, after he had violated the court's instructions, and heard part of the tesimony. Such matters are usually left to the discretion of the court.
Appellant's second bill is concerned with the trial court's refusal to allow the witness Wheeler to testify relative to appellant's reputation for "honesty and veracity." We note that the witness had been allowed to testify that appellant's reputation for "peace and violence" was good, and upon such witness being asked regarding appellant's reputation in the community in which he lived for "honesty and veracity" the State objected *Page 579 to such question on the ground that such a question was not a proper question, and was not asked in a proper case, which objection was by the court sustained. We think the court was correct in his ruling on such question. We can see no reason why appellant's reputation for honesty was included in such a question. He was not charged with a crime that impugned his honesty. Appellant claims, however, that because of the fact that certain statements testified to by witnesses as having been made by appellant at the scene of the offense, and which were contradictory of his testimony given on the trial, amounted to an attack upon appellant's veracity. We think this bill has been properly disposed of in our original opinion, and that the trial court was correct in sustaining the State's objection to the question.
Bill No. 3 complains because of the fact that appellant's wife, Lucy Jackson, whose arm had been shot off in the transaction wherein Oscar Jackson, the deceased, lost his life, — was called into the court room for identification by the appellant. The reason for the witness being thus brought into the court room being because the appellant, while on the stand, was asked if he would know his wife if he would see her, and his answer being as shown by the court's qualification: "I don't know whether I would know her now if I would see her, she might change up so," but at this first attempt to have his wife enter the court room before the appellant and jury, and be identified by appellant, the court seemed to have sustained the objection of appellant's attorney. At a later point in appellant's testimony, however, the woman was finally brought into the court room, and the appellant then said "That's her, alright," and she immediately left the court room.
It is contended that such a proceeding was violative of the statute, Art. 714, C. C. P., which prohibits a wife testifying against her husband, except in certain instances. It will be noted that this woman was merely brought into the court room for the purpose of identification only; that she was not sworn, nor did she say a word. True it is, she was minus one arm, which had been shot off by appellant, so the testimony showed, but the sight of this one armed woman could not have changed the effect of the facts relative to how she lost her arm, and such facts had already found their way into the minds of the jury in the res gestae testimony before them. We quote from Barra v. State, 50 Tex.Crim. Rep.:
"There is some question raised as to having appellant's wife come in before the jury for the purpose of identifying her *Page 580 as his wife, and having appellant on his cross-examination testify that the woman, Albina, was his wife. This does not come under the rule laid down by this court in Moore v. State, 45 Tex.Crim. Rep.. There the wife was sworn as a witness against her husband. She was brought in here merely for the purpose of identification by the husband, and we believe it was competent to prove by him that she was his wife. Furthermore, no injury was shown to appellant on this account." See Hearne v. State, 58 S.W. Rep. 1009; also the late case of Wineman v. State, 26 S.W.2d 645.
Appellant's bill No. 4 relates to the argument of the State's attorney wherein he sets out in descriptive words the scene at the burning of the house and the capture of the appellant, and the finding of the burned body of the deceased. While the attorney did make the statement that he was there, and others were there also, nevertheless we think he depicted the surroundings from the ideas conveyed by the witnesses while they were on the stand, but of course in language of his own, and although he did not testify, some of his statements may have been tinctured with what he knew rather than with what the testimony was, nevertheless we think the argument complained of was fairly deducible from the facts, and the mere fact that such attorney said in his argument that he was there, could not have had any improper influence upon the jury. It is to be noted that the fact that such attorney was there was testified to by practically all the State's witnesses as well as by the appellant, and we do not think that a mere statement that the State's attorney was there evidences any serious error.
Under a proper instruction from the court the jury passed not only upon the question of appellant's guilt but also upon his sanity. They found him sane under conflicting testimony, and we feel that we have neither the right nor the power to set their verdict aside under the record herein.
There may have been some minor mistakes made in a recitation of the record in the original opinion, which are vigorously complained of by appellant's attorney in this motion, but they consist mainly of a distinction without a difference, and do not merit the harsh criticism leveled at them in the motion.
We have again gone over the entire record and see no reason to recede from the position taken in our original opinion herein. The motion will therefore be overruled. *Page 581