Burton v. State , 129 Tex. Crim. 234 ( 1935 )

In his motion for rehearing appellant insists that the evidence is not sufficient to support the judgment and penalty assessed. His chief reason seems to rest upon his claim that he killed deceased because of alleged adulterous relationship with the wife of appellant. It is provided in Art. 1220 of our Penal Code that a homicide is justifiable when committed by the husband upon one taken in the act of adultery with his wife, provided the killing take place before the parties to the act have separated; and it is further provided that such circumstance will not justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to such relationship. It is perfectly clear from the record before us, upon the testimony of appellant himself, that he did not kill deceased while engaged in the alleged adulterous intercourse with his wife, nor while at the scene where he claims same took place. He claims that deceased and appellant's wife engaged in adulterous intercourse down back of a lot, and that after it was over, and deceased came on up to the house, and a conversation ensued between them, accompanied by threats on the part of deceased, that he, appellant, took the life of deceased. We might observe that according to the testimony of appellant's wife, deceased had been keeping company with her a good while, and that on at least two prior occasions appellant had found them in compromising positions, — on one occasion finding them in bed together, and on neither of said former occasions did appellant claim to have been so angered as that he tried to kill deceased. We are still of opinion, as when we originally wrote, that the evidence showed a killing upon other reasons and for other motives than that just mentioned.

Appellant insists again that the trial court erred in excusing from the panel a juror who had been selected but was found to have been previously convicted of a felony. The bill of exceptions presenting this complaint is wholly insufficient. After reciting therein that the court called the juror out of the jury box and excused him from jury service, it is stated: "To which action of the court the defendant then and there excepted;" no ground of exception being stated then or elsewhere in the bill. We presume entire correctness in the court's action in the absence of any sufficient or proper complaint thereof. Neither then nor in his original or amended motion for new trial did appellant attempt to set up any of the reasons or grounds which he now insists may have existed, as affecting the correctness of the court's action in excusing the juror. If the appellant had set up in his motion for new trial that the juror who had previously been convicted of a felony had been pardoned, or that for some other reason he would not be disqualified, a totally different question might have been presented. There is nothing of that kind here shown. That such bill of exceptions is too indefinite see Day v. State,62 Tex. Crim. 527; Edmanson v. State, 64 Tex.Crim. Rep..

We regret we cannot agree with appellant's contention that his statement of facts on hearing of the motion for new trial was authenticated. As prepared by appellant, there was a blank left for signature of the judge, but evidently the court's attention was not called to same, and same is not properly authenticated.

Not being able to agree with any of appellant's contentions, the motion for rehearing will be overruled.

Overruled.