Wade v. State , 103 Tex. Crim. 395 ( 1926 )

From conviction for murder in the District Court of Wichita County, with punishment fixed at five years in the penitentiary, this appeal is taken.

Appellant killed her husband and sought acquittal on the ground of insanity, or at least the reduction of the offense to manslaughter. She claimed that her husband had been intimate with one Alice Meredith, and that he had mistreated her, and that this with other things preyed on her mind until it became affected. She shot her husband one night about one o'clock, at which time he was lying in the bed, and it is not claimed that he was doing anything manifesting any intention to harm appellant.

The only objection interposed by appellant to the question set out in bill of exception No. 1 was that same was immaterial and irrelevant. Such an objection has often been held insufficient by this court. See cases collated under Art. 744, Vernon's C. C. P.; Hickey v. State, 62 Tex.Crim. Rep.; Stapp v. State, 144 S.W. Rep. 941; Simms v. State, 148 S.W. Rep. 786.

On cross-examination appellant was asked the question: "If you did not know right from wrong, why didn't you go out and seek Alice Meredith and kill her?" It is not shown that this question was answered, but the bill shows that the State's attorney then asked appellant: "Can you tell the jury why it was you didn't kill Mildred (daughter of deceased) or Alice Meridith or some other person beside your husband?" The only objection urged to this was that it was irrelevant and immaterial. The objection is not sufficient upon the authorities above mentioned. The answer of witness was that she did not know why she did not kill somebody else. In our opinion the cross-examination was permissible.

Appellant offered in evidence a subpoena issued at the instance of the defense for Alice Meredith. We are wholly unable to comprehend the purpose back of the introduction of said subpoena. We perceive no issue before the jury upon which same would have any legitimate bearing.

Appellant offered in evidence her application for a continuance in this case. We think same was properly rejected and that same had no legitimate place in the testimony.

There was a complaint directed at the remark of the district attorney to the jury that he was tired of juries returning verdicts of manslaughter. Appellant sought to have the jury instructed not to consider such argument, which request was refused. There is nothing in the bill which manifests the impropriety of the argument referred to. No reference was made to the verdict of any particular jury, nor is it shown that the matter was not in legitimate reply to other argument in the case, nor are the surroundings or settings of said argument put in the bill.

There is a bill to the overruling of an application for a continuance sought because of the absence of two witnesses. We are of opinion that the application fails to show diligence as to the witness Smith, and that the testimony stated to be that expected of the witness Meredith was not such as would have any legitimate bearing upon the issues of this case. No subpoena for either witness is attached to the motion as is generally held necessary in order to apprise this court of the diligence used.

We have carefully examined and considered each contention made by appellant, and being unable to agree that any of same are sound, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.