The indictment charged appellant with killing Bertha Brantley by shooting her with a pistol; he was convicted of murder in the first degree, his punishment assessed at death, and prosecutes this appeal.
When the case was called for trial, a motion was made to quash the indictment because the jury commissioners had not drawn persons of African descent as jurors to serve upon the grand jury. Article 559, Code of Criminal Procedure, provides: "A motion to set aside an indictment or information shall be based on one or more of the following causes, and no other: (1) That it appears by the record of the court that the indictment was not found by at least nine grand jurors; * * * (2) that some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or *Page 349 were voting upon the same." If this motion has any merit in it at all, it relates, not to the substance of the indictment, but to the manner of its finding and presentment. So it will be seen, by the very terms of the statute itself, that the fact that people of African descent were not drawn by the commissioners to serve as jurors upon the grand jury is not a ground for setting aside an indictment. Article 397 of the Code of Criminal Procedure provides: "Any person, before the grand jury has been impaneled, may challenge the array of jurors, or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge." Appellant does not undertake to bring himself within the purview of this statute. His motion was to quash the indictment. If there were any objections to the grand jury, or any member of it, they should have been exercised by challenge, either to the array or to a particular member of said body. See Barber v. State (decided at the present term), 46 S.W. Rep., 233. The question of challenge to the array, or to a particular juror, is not suggested, nor is it shown that he was debarred this right. It is too late, after indictment found, to question the manner of impaneling a grand jury.
Motion was also made to quash the special venire because the jury commissioners had not selected any persons of African descent to serve as jurors upon the trial of cases to tried at the succeeding term of the court after the jurors were drawn by said jury commissioners. This was urged in the nature of a challenge to the array. Article 661 of the Code of Criminal Procedure provides: "The defendant may challenge the array for the following causes only: That the officer summoning the jury has acted corruptly, and has willfully summoned persons upon the jury known to be prejudiced against the defendant with a view to cause him to be convicted." This statute only applies when the jurors have been selected by the sheriff, and not drawn by the jury commissioners; for article 662 declares that: "The two preceding articles do not apply when the jurors summoned are those who have been selected by jury commissioners. In such case no challenge to the array is allowed." This is not a novel question in this State. As far back as 44 Texas it was held that, where the defendant is a negro, it is not a ground of challenge to the array that it is composed of white men exclusively. Williams v. State, 44 Tex. 34 [44 Tex. 34]. So it has been held that it is not a ground for a motion to quash a special venire, or of challenge to the array, that the jury commissioners selected jurors solely from persons known to be not equals of the accused, but his superiors. See Cavitt v. State, 15 Texas Crim. App., 190. There was no error on the part of the court with reference to either of the above bills of exception.
On the trial, and while Dennis Brantley was on the witness stand, the State introduced a drawing made by said witness. This drawing is a map or diagram of the house where the killing occurred, and is shown to be correct. The objection urged was that the drawing was made by an *Page 350 interested person, and was not correct; but the testimony shows, without contradiction, that it was correct. It is immaterial who made the map or diagram — whether an interested or disinterested party. If the map was not a correct one, this fact could be shown; and the defendant, if he desired, could attack the map by showing its incorrectness, and supply the defects by putting in evidence one of his own. So far as we are advised, it has always been held proper and legitimate, for the purpose of explaining the testimony of the witness, and rendering it more intelligible than it would have been otherwise, to introduce diagrams, maps, and plats. It also serves the purpose of enabling the jury to better understand and apply the evidence with reference to various localities spoken of by the witnesses. This question underwent an investigation in the case of Rodriquez v. State, 32 Texas Criminal Reports, 259, and it was there held that such maps could be properly introduced in evidence.
The State introduced the witness Elizabeth Browning, and by her proved that the deceased was her sister, and that at the time of her death she was commonly called and generally known by the name of Bertha Brantley, and was called by that name by all the people who knew her. This was objected to upon the ground "that the solemn records of the District Court of Galveston County showed that the deceased, by a decree of that court, had her name changed to Albertha Ruth Browning on the 12th of November, 1897, and that it was not proper to dispute the record evidence in that manner." It may be stated that the evidence does show that the deceased obtained a divorce from her husband, Dennis Brantley, and by the decree of said. District Court her name was changed from Brantley to Browning, her maiden name. This occurred a few days prior to the homicide. This, however, was not known by members of her own family. But this would be immaterial. If her name had been in fact, independent of the decree of divorce, Albertha Ruth Browning, but she was commonly and generally known by the name of Bertha Brantley, the allegation in the indictment that such was her name would be sufficient. The unbroken line of decisions in this State are to this effect. This testimony was introduced to meet the supposed variance caused by the introduction of the decree of divorce.
Appellant requested the court to charge the jury that if they believed from the evidence that, at the time the defendant shot and killed deceased he was not of sound mind, but was affected with insanity, and such affection was the efficient cause of the act, and that he would not have done so but for that affection, or if they believed that at the time the prisoner had not sufficient use of his reason to control the emotions which prompted him, they should acquit on the ground of insanity. This was refused by the court. There was no error in this. The court gave a charge on insanity in language which has been often approved by this court, and in addition, at the request of appellant, gave the following charge: "The court instructs the jury that it devolves upon the State to prove every material issue of fact in this case beyond a reasonable *Page 351 doubt, except the issue of the defendant's sanity or insanity at the time of committing the crime charged; and upon that issue the burden is upon the defendant to satisfy you that he was affected with insanity, and by reason thereof did not know the difference between right and wrong, as to the particular act charged against him, at the time he shot and killed deceased, before you will be authorized to acquit him." So the court not only gave a proper charge, but gave the above charge at the request of appellant. It was not necessary to repeat this phase of the law in further instructions.
Appellant requested the following instructions: "The jury are instructed that they may take into consideration the evidence of the prisoner's previous good character, also the circumstance of whether he really intended to take his own life at the time he shot and killed deceased, in connection with all the other facts and circumstances, for the purpose of enabling you to determine the mental condition of the prisoner at that time." As before stated, the court gave a proper charge upon the law of insanity, and instructed the jury that they were to determine from the evidence in the case this question of insanity, it being a question of fact for their determination. We do not believe that it was incumbent on the court to single out, specify, or group any particular facts, and specially call the attention of the jury to them. It is not the province of the court to sum up the facts, and call special attention of the jury to the force and effect of certain facts, unless under some statute authorizing or requiring him to do so.
It is also contended that the verdict of the jury is contrary to the law and against the evidence. The statement of facts discloses that the deceased, Bertha Brantley, and Dennis Brantley had been husband and wife. They had been living apart for some months, and a few days prior to the homicide the deceased had obtained a divorce from her husband. It is further disclosed that the appellant had been the paramour of Bertha, the deceased, and had been very intimate with her, for some two or three years prior to the homicide, and while she was still the wife of Dennis Brantley, and that they were infatuated with each other is placed beyond question by the testimony. Letters from the deceased to the appellant are incorporated in the record, showing her almost absurd infatuation with him. Appellant became jealous of the deceased, and, it would seem, because of the approaching remarriage of Dennis Brantley and the deceased. On the evening of the homicide there was a social gathering at one Maguire's. Dennis Brantley and the deceased attended that gathering, and, while they were sitting upon the side of the bed in one of the rooms, appellant made his appearance at the door of the room, and asked for a private interview with the deceased. She requested him to approach where she and her former husband were sitting, and hold the interview with her at that place. This he declined, and insisted upon a private interview. Dennis Brantley thereupon left the room, so that appellant might have the desired interview. A low conversation occurred between appellant and deceased. She left him, and approached the door *Page 352 of the adjoining room — the kitchen; and while standing at that point, talking, appellant approached her from behind, and shot her in the head. She fell upon the floor, and he fired three or four shots at her prostrate form, killing her. He left his hat by his victim, and fled. He went thence to his mother's residence, and finally appeared at the police station, and surrendered to the officers. When he arrived there his throat was cut, and, it was thought, fatally. He admits this cutting, saying that he desired to die. His hat was found, with a bullet hole through it from front to rear, but the ball missed his head. This ball, he says, he fired himself at the time he killed deceased. These are the salient facts and are not questioned. We believe this evidence justified the verdict of the jury, and we deem it unnecessary to comment upon the testimony. The judgment is affirmed.
Affirmed.
HURT, Presiding Judge, absent.
ON MOTION FOR REHEARING.