In his motion for rehearing, it is again urged that the action of the trial court, in admitting in evidence the voluntary written statement of appellant, made before the examining magistrate, was error; and also that there was error in rejecting the evidence offered on behalf of the appellant, to show that he did not know and appreciate the consequences of making such voluntary statement, said evidence being offered and rejected at the time the State introduced said written statement. To make this matter clear, we set out appellant's bill of exceptions No. 8, which contains in full this objection. Said bill is as follows:
"Be it remembered that upon the trial of the above entitled and numbered cause, the State, over the objection of the defendant, was permitted to introduce and read to the jury a written instrument, purporting to be the voluntary statement of defendant, made at the examining trial before H.T. Compton, Justice of the Peace, Precinct No. One, Wharton County, Texas, to the introduction of which defendant objected for the reasons, among others, that the defendant did not have sufficient mental capacity to understand the consequences of the statement made before the Justice of the Peace, and did not understand the nature of the statement that it would be used against him as evidence, and did not have sufficient mental capacity to know and understand that it was necessary for him to state facts in his favor with reference to the homicide, as well as facts detrimental to his defense, and defendant then and there tendered to the court testimony of witnesses showing that the defendant was mentally incapacitated from an educational standpoint and from natural ability to understand the consequences or purpose of the statement of the kind offered in evidence, to which the court overruled his said objections so made by the defendant, and the defendant in open court excepted to the ruling of the court, and here now tenders this his bill of exceptions and asks that the same be considered, signed and filed as a part of the record in this case." Which bill is approved by the trial court, as above set out.
It was not claimed by appellant upon his trial, that he was insane or of unsound mind either at the time of the homicide or at any time thereafter. No such plea was interposed, submitted, or requested. As we understand the above bill of exceptions, it was not offered by appellant to establish by witnesses that he was insane when he made *Page 172 the voluntary statement referred to, but, as it is stated in the bill in so many words, it was expected to prove by said witnesses that appellant was "mentally incapacitated from an educational standpoint, and from natural ability, to understand the consequences or purpose of the statement of the kind offered in evidence." As we understand the rule, there being no question of the sufficiency of the predicate laid by the State for the introduction of this testimony, the trial court will admit same, and if appellant thereafter desires to place before the jury evidence combatting the voluntary character of the statement, or the sufficiency of the warning, or in any way affecting the admissibility of said statement, he may do so, and have the jury instructed not to consider such statement if they find same to be inadmissible under any of the rules laid down. Berry v. State,58 Tex. Crim. 291.
We do not believe a lack of education, or of natural ability to understand the consequences or purpose of making such voluntary statement, is a proper matter for the court to stop the trial and hear, and determine by the testimony of witnesses. In his motion for rehearing, appellant alleges that the approval of this bill of exceptions by the trial court, sets the stamp of his approval upon the facts therein stated. We do not so understand, but hold that such approval merely amounts to the court's statement that such were the grounds of objection urged. Hennesy v. State, 23 Texas Crim. App., 340; McKinny v. State, 41 Tex. Crim. 434; Douglas v. State, 58 Tex.Crim. Rep.; Day v. State,61 Tex. Crim. 114; James v. State, 63 Tex.Crim. Rep.. Said bill of exceptions nowhere urges the insufficiency of the warning, or of the State's predicate for the introduction of the statement in question. Contentions to this effect, appearing in the motion for new trial, but unsupported by objection, as shown in the bill of exceptions, could not be upheld by us. We do not think we would be justified in concluding that the appellant might content himself with believing that the court would not admit such evidence at all during the trial, because of the fact that the trial court refused to permit appellant to interrupt the State's introduction of its testimony so as to hear appellant's witnesses, offered on the question of appellant's education and ability when making a voluntary statement before the magistrate. We repeat that if appellant desired to cast doubt on such evidence legitimately, his time to do so was when he was introducing his side of the case.
We have again carefully examined appellant's bills of exception, to see if there be one taken to the court's refusal to allow the introduction of such evidence at any other stage of the trial, but find none. It would seem to us that appellant's offer of such testimony was only upon an issue which he desired to present to the court, and not upon one which he desired to go to the jury; and that the court's action was correct in refusing to hear said witnesses when offered. *Page 173
We have again reviewed the matter of appellant's application for continuance, in order to get the testimony of Ike Pratt. In addition to what we have already stated in our former opinion regarding lack of diligence, and the likelihood that Pratt would not testify as claimed by appellant, our attention is called to the controverting affidavit of the district attorney, in which he quotes from the testimony of this witness as given on the examining trial, showing that his testimony there given was different from that stated by appellant as expected from him. It does not appear that this witness was present or served with process at the preceding term of the district court, or the one at which this trial was had, and it does appear that he had not been summoned in any manner during the instant term. We think our holding is correct in this matter also.
This disposes of all the matters contained in this motion, and the same will be overruled.
Overruled.