the rules discussed in the Gregory Case. See, also, Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1046; Welch v. State, 50 Tex. Cr. R. 28, 95 S. W. 1035; Richardson v. State, 44 Tex. Cr. R. 211, 70 S. W. 320. and would have proven by the witness the facts stated, was insufficient. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943'; Dec. Dig. § 1091.*] 6. HOMICIDE (§ 169*)-EVIDENCE-DECLARATIONS BY DECEASED. "We note the reference in the majority opinion to the case of Bullock v. State, 165 S. W. 196. We do not understand that that case necessarily involved any question similar to the one here presented. There may be language In a prosecution for wife murder, evidence in the opinion broad enough to render this tes- of declarations made by deceased long prior to timony admissible, but we do not believe that the killing, as to the cause of the troubles beit was necessarily called for by the facts between herself and her husband, was inadmissifore the court, and that the force of the deci- ble either for or against accused. sion should be confined to the facts and issues before the court." BROWN V. STATE. (No. 2014.) (Court of Criminal Appeals of Texas. May 28, 1913. Rehearing Denied June 25, 1913. Or der Overruling Motion for Rehearing Set Aside June 27, 1913. On Motion for Rehearing, June 3, 1914. Dissenting Opinion Sept. 8, 1914.) 1. CRIMINAL LAW (§ 598*)-CONTINUANCEABSENCE OF WITNESS-DILIGENCE. Where no process had been issued for an alleged absent witness, and his residence at the time of the trial was unknown, an application for continuance because of his absence was properly denied for want of diligence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.*] 2. CRIMINAL LAW (§ 595*)-CONTINUANCE— ABSENCE OF WITNESS-INCOMPETENT TESTI MONY. Accused was not entitled to a continuance because of the absence of a witness, where the testimony intended to be offered by such witness was inadmissible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323–1327; Dec. Dig. § 595.*] 3. CRIMINAL LAW (§ 1166*)-CONTINUANCE— DENIAL-ABSENCE OF WITNESS-PRESENCE AT TRIAL. Error, if any, in denying an application for a continuance because of the absence of certain witnesses was cured by their presence at the trial. PERIMENTS. Where a physician testified that at the time he made an experiment to see if he could make an indentation in the wall of the room where deceased was killed by striking across a bed with an iron bar with which defendant claimed deceased had been killed, and in the same manner, the bed had not been moved, and a deputy sheriff, who testified with reference to a similar experiment, stated that before he made it accused placed the witness in the exact position which he claimed the person who killed deceased was in when he struck the blow, the evidence of the experiments was not rendered inadmissible because of defendant's testimony that when the physician arrived he changed the position of the bed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 854; Dec. Dig. § 388.*] 5. CRIMINAL LAW (§ 1091*)-APPEAL-BILL OF EXCEPTIONS EXCLUSION OF EVIDENCE. A bill of exceptions to the exclusion of offered evidence, alleging that accused "expected" to prove certain facts, instead of that he could [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.*] 7. HOMICIDE (§ 178*)-KILLING BY UNIDENTIFIED PERSON-EVIDENCE. Where accused claimed that his wife was killed while asleep at night by an unidentified that she had been divorced from a former husburglar in September, 1911, and it appeared band, from whom she had fled several years before, and who had himself married again, and was living in another county, evidence of her fears that he would kidnap her son, and of various acts of annoyance committed by some one with reference to her, but not shown to have been such former husband, was inadmissible to raise an inference that he, and not defendant, might be the person who did the killing; there being no proof that such former husband was in such proximity to the place of the homicide at the time it was committed that it would have been possible for him to have committed it. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 307-309; Dec. Dig. § 178.*] 8. CRIMINAL LAW (§ 413*)-EVIDENCE-SELFSERVING DECLARATIONS. In a prosecution for wife murder, declarations to third persons by accused prior to the killing, not a part of the res gestæ, that he had rescued his wife from drowning, and that he would not permit her to drive a certain horse because it would kill her, and that she had become angry thereat, were self-serving and inadmissible. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.*] 9. HOMICIDE (§ 169*)-EVIDENCE-RELATION OF PARTIES. In a prosecution for wife murder, declarations by deceased to third persons that she loved defendant were inadmissible, having no bearing on the question whether he loved her. Cent. Dig. §§ 341-350; Dec. Dig. § 169.*] [Ed. Note.-For other cases, see Homicide, 10. CRIMINAL LAW (§ 1172*) - TRIAL-INSTRUCTIONS-WEIGHT OF EVIDENCE. On an issue whether decedent spoke after she had been stricken, her son testified that he was asleep when the blows were struck, but was awakened by defendant, and when he went out, deceased made a certain statement. The state introduced witnesses who testified that the son had told them that his mother did not speak after he awoke, and defendant then introduced B., who testified that she called at the home of deceased about half an hour after the injuries were inflicted, and that the son told her about his mother making the statement to which he testified. Held, that an instruction that if the jury believed that the son told B. that his mother did speak, they should consider such testimony in support of the son's testimony to that effect, if erroneous, was in favor of and not against accused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 11. CRIMINAL LAW (§ 1137*)-APPEAL-IN- | 15. CRIMINAL LAW (§ 1043*)—TRIAL-MISSTRUCTIONS-REQUESTED CHARGE-RIGHT TO LEADING INSTRUCTIONS-OBJECTIONS. ALLEGE ERROR. Accused having requested the court to charge that, even though the jury believed the evidence that decedent's son stated that decedent did not speak after the son appeared, they could consider such evidence only for impeachment, and not as any evidence that decedent did not in fact speak after she was injured, defendant was estopped to object that the court's instruction that if the jury believed that the son told B. that his mother did speak, they could consider B.'s testimony to that effect in support of the son, on the ground that it was on the weight of the evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. 8 1137.*] 12. CRIMINAL LAW (§ 1172*)—APPEAL-INSTRUCTIONS-WEIGHT OF EVIDENCE-PREJU DICE. Where an alleged statement made by deceased after she had been injured did not even tend to show whether or not defendant inflicted the injuries, and did not throw any light on who struck the fatal blows, an instruction with reference to impeaching testimony, on the question whether deceased spoke after her injury or not, though objectionable as on the weight of the evidence, was not prejudicial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.*] 13. HOMICIDE (§ 308*)-MURDER-INSTRUCTIONS-EXPRESS OR IMPLIED MALICE. The court charged that in order to convict of murder in the first degree, malice must be shown, viz., the jury must be satisfied from the evidence beyond a reasonable doubt that the killing was a consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately, with a sedate mind, that is, when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done, but that there is no definite space of time necessary to intervene, it being only necessary that the mind be cool and deliberate in forming its purpose, and the design to kill. Held, that such instruction was not objectionable as authorizing the jury to convict of first degree murder on proof of either express or implied malice. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.*] 14. CRIMINAL LAW (§ 784*)-CIRCUMSTANTIAL EVIDENCE-INSTRUCTIONS. An instruction that, in order to warrant a conviction on circumstantial evidence, every fact necessary to the conclusion must be proved by competent evidence beyond a reasonable doubt, that all the facts necessary to the conclusion must be consistent with each other and with the main facts sought to be proved, and the circumstances taken together must be of a conclusive nature leading on a whole to a satisfactory conclusion and producing in effect, a reasonable and moral certainty that the accused and no other committed the crime, and that it is not sufficient that the circumstances render probable the guilt of accused, but they must exclude to a moral certainty every other reasonable hypothesis except his guilt, and unless they do so beyond a reasonable doubt, the jury must find the defendant not guilty, was proper. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*] An objection that an instruction was misleading and calculated to prejudice accused is too general. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.*] 16. CRIMINAL LAW (§§ 763, 764*)—INSTRUCTIONS-WEIGHT OF TESTIMONY. the statements or declarations of accused might An instruction that the truth or falsity of be shown by circumstantial evidence, and that it was not necessary for the state to disprove them by positive testimony, was not objectionable as on the weight of the evidence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.*] 17. CRIMINAL LAW (§ 823*)—TRIAL-INSTRUC TIONS. The court at defendant's request having charged, concerning defendant's statements as to how deceased was injured, that the burden of proof was on the state to establish beyond a reasonable doubt the falsity of such statements, and that proof of the falsity of the statements, if any, in immaterial matters was not sufficient, but that the state must prove the falsity of every statement, if any, made by defendant which in the mind of the jury raised a reasonable doubt of his guilt, defendant could not successfully contend that the court had not otherwise charged with sufficient definiteness that all exculpatory statements which raised a reasonable doubt of accused's guilt must be proven to be false. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.*] 18. CRIMINAL LAW (§ 829*)-INSTRUCTIONS— ISSUES. Where in a prosecution for wife murder, defendant claimed that another than himself killed deceased, but there was no evidence raising such issue except the testimony, declarations, and statements of accused, and the court properly and sufficiently charged, as to such statements and declarations that the burden was on the state to establish beyond a reasonable doubt that they were false, the court did not err in omitting to otherwise present defendant's claim that another killed deceased as an affirmative defense. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 19. HOMICIDE (§ 148*)-Uxorcide-PRESUMPTIONS OF INNOCENCE. In a prosecution for wife murder, there is no additional presumption of innocence because of the relationship. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 273; Dec. Dig. & 148.*] 20. CRIMINAL LAW (§ 829*) - TRIAL - REQUESTED CHARGE-INSTRUCTIONS GIVEN. It is not error to refuse a request to charge as to questions fully covered by the court's main charge. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 21. CRIMINAL LAW (§ 1090*)-APPEAL-BILL OF EXCEPTIONS-NECESSITY. Alleged prejudicial remarks of the district attorney cannot be reviewed in the absence of a bill of exceptions showing that the remarks were in fact made. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 28252827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ment. 22. COURTS (§ 66*)-EXTENSION OF TERM- pellant had been married prior to his marRECEIVING VERDICT-VALIDITY OF STATUTE. riage to Mrs. Sallie Brown, the woman whom Rev. St. 1911, art. 1726, providing that whenever a district court shall be in the midst he is alleged to have killed, and had a of the trial of a case when the time fixed by number of children by his first wife. Mrs. law for the term shall expire, the presiding Sallie Brown had also been married prior to judge may extend the term until the conclusion her marriage to appellant, and also had chilof the pending trial, was a valid exercise of legislative power, and authorized the extension dren by her former husband. Appellant and of a term during the trial of a case for the his wife were married January 4, 1910. Appurpose of receiving a verdict and entering judg- pellant and his wife were living on a farm about 61⁄2 miles from Brownwood, when in November, 1910, she left the farm and moved to Brownwood, remaining there until in March, 1911, when she returned to the farm, the homicide occurring at the farm on September 9, 1911. All the children had gone to town to a show except the three little ones, who will hereafter be referred to. About 10 o'clock that night Mr. Ivy Beeman says appellant called him over the telephone, and said: [Ed. Note.-For other cases, see Courts, Cent. Dig. § 231-242; Dec. Dig. § 66.*] On Motion for Rehearing. 23. CRIMINAL LAW (§ 412*)-EVIDENCE-ACTION-DECLARATIONS OF ACCUSED. Acts and declarations of accused prior to the event which tend to show his mental status are admissible in a prosecution for an offense of which intent is a material element. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 894-917, 919-935; Dec. Dig. § 412.*] 24. HOMICIDE (§ 169*)-STATEMENTS BY DECEASED RELEVANCY. Where, in a prosecution for wife murder, it appeared that deceased had previously left defendant and gone to reside in a different place, but had returned to defendant's home some time previous to the killing, and the state did not deny that during the separation defendant visited deceased frequently and furnished her with supplies, decedent's statements to third persons concerning the separation, and that it was not permanent, but only because of differences concerning the children, were inadmissible. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.*] 25. HOMICIDE (§ 167*)-EVIDENCE-ILL WILL -REBUTTAL. Where in a prosecution for homicide, the state offers testimony of quarrels, ill will, and a state of bad feeling between defendant and deceased, to show motive for the homicide, evidence tending to show a different state of feeling, to wit, that defendant was kind and attentive to deceased, and that their relations were pleasant and agreeable, is admissible. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 332-340; Dec. Dig. § 167.*] Davidson, J., dissenting. Appeal from District Court, Runnels County; J. W. Goodwin, Judge. George Brown was convicted of uxorcide, and he appeals. Affirmed. W. F. Ramsey and C. L. Black, both of Austin, T. C. Wilkinson and Scott & Foster, all of Brownwood, P. M. Faver, of San Saba, Snodgrass & Dibrell, of Coleman, and John I. Guion, of Ballinger, for appellant. R. L. McGaugh, Co. Atty., of Brownwood, H. ZDaril, of Taylor, W. U. Early, of Brownwood, Stone & Wade, of Ballinger, and C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was prosecuted, charged with the murder of his wife, convicted of murder in the first degree, and his punishment assessed at imprisonment for life. The offense was alleged to have been committed in Brown county, but was tried in Runnels county on a change of venue. Ap "Mr. Beeman, I wish you would come down here quick, a burglar has knocked me and my wife in the head and tried to kill us both." The witness says he replied, "All right," and began to dress, but before he got ready to go appellant called him again and said: hurt bad, and I am afraid she will die before "I wish you would come quick, my wife is you get here; there is blood all over everything, and I wish you would come quick." He then details in what condition he found Mrs. Brown, the defendant's statements at the time, etc., but, as we will quote extensively from the statement of Dr. Tottenham, the family physician of Mr. Brown, who states the matter more succinctly, we will not recite Mr. Beeman's testimony. Dr. Tottenham testified he was called that night and went immediately, and then testifies: "I came in and spoke to Mr. Brown, and Mr. Beeman and said, 'Good evening,' or something of that kind, and Mr. Brown made an exclamation, My God! or something of that kind, ning,' to him, and he says, 'My God, isn't this 'Isn't this awful?' I think I said, 'Good evehorrible or awful?' or something to that effect, and I says, 'It certainly is; how did it happen?' and he proceeded to tell me then; he told me that he had been taking some medicine and had been up with his bowels once or twice, and wasn't sleeping sound, and that he was lying on the inside of the bed and his wife was on the outside, and he said he wasn't sleeping sound, just kinder dozing, and indicated to me wife, and had his eyes shut, and he said he how he was lying on his right side facing his heard something tip up on the gallery, and 1 thought it was a dog,' and he says, "Then I looked up and I saw a man drawn back,' and heard the lick,' and says, 'I opened my eyes and he indicated to me then with his arm; he was standing up at that time; he was standing bethe bed, and said he was lying on his right side tween the bed and the wall near the head of facing his wife, and he says, 'I heard some one tip up on the gallery, and I thought it was a dog, and then I heard the lick,' and he says, 'I opened my eyes and looked up'; when he was telling me this I was standing at the head of the bed, and he was in this position; he was talking and standing about like you are now, and I was standing at the head of the bed, and he was between the bed and the wall; he said. 'I heard something come up on the porch,' and he was looking this way when he made this *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes statement, and says, I thought it was a dog';, ances, and you couldn't see any respiration at he was looking towards this southeast step, the all, you couldn't see her breathing at all; her same step I entered from; he didn't do any- pulse was scarcely perceptible, and you couldn't thing else with reference to indicating that step hardly feel it, it was so weak; after the officer except looking that way and facing that way came I examined her head, and there was a when he was talking; he said he thought it mass of brain just beat into a jelly protruding was a dog, and then he heard the lick, and he over the right eye, just sticking right down wasn't sleeping sound, he was dozing, and says, here, and I removed that protruding mass of 'I looked up,' and he indicated on his arm a brain and some fragments of skull that was distance of about 18 or 20 inches something that easily gotten to; I didn't go deep into this he said the man had raised up; he was still fracture, this large opening here, and I placed standing near the head of the bed near this the skin flaps over this opening and put on window, and he says he looked up and saw aseptic dressing, and then examined the other him drawing back to hit him, and says, 'I duck- side, and over the left eye; about an inch or ed, and as I ducked I felt the wind as it passed an inch and a half from the wound over the my head,' and he turned then and pointed to right eye was a horizontal fracture an inch or the wall opposite the bed to the right of me an inch and a quarter long that could be plainly and says, 'See there,' and pointed to the wall felt and seen through the skull; you could see right along here; he was standing close to this the fracture plain over the left eye; by fracwindow, right about here; he turned around ture I mean that the skull was broken; that and pointed to the wall and says, 'See there fracture over the left eye was about an inch where he like to have killed me or tried to kill or an inch and a quarter in length; over the me; that is where he hit the wall.' I saw the right eye I found that there was a fracture indentation on the wall then, and I still stood about an inch and a half or two inches square, at the head of the bed. I says, 'What did you and the process over the right eye was broken do then, Mr. Brown?' He says, 'I jumped up in; that was the superorbital process; that and ran between the bed and the wall into this superorbital process runs backward under the room, the north room, to get my gun,' and as brain and between the eye and the brain and the he ran, he says, he used an oath and said that optic nerve; I suppose that runs back an inch he would kill him, or something to that effect; and a half; that superorbital process is comhe says, 'You son of a bitch I will kill you,' and posed of bone, but it is not very thick there; started after his gun; he said as he entered right in front of that superorbital process is the this door he was afraid the man would follow thick portion of the skull; the nasal bone was him and he closed this door, and as he looked broken in, but I made no examination further over his shoulder his pants was on this chair than that; I didn't make any further examinaat the foot of the bed with four dollars and tion at that time because I didn't think it was something in his pants, and a Woodman re- necessary, I didn't think anything could be done ceipt and a $5 pearl-handled pocketknife, and for her, and I knew that it wasn't necessary says, 'He grabbed my pants and run.' He says at that time; I then cleansed her off as well as 'You will find the pants somewhere where he I could and put on a clean gown and carried throwed them down, he won't carry them far'; her into this south room and placed her on a I says, 'What did you do then?' He says, 'I bed; I stayed there until about 11 or 11:30 on got my gun from the closet as quick as I could Sunday morning; I heard the defendant say and the shells from over the closet and came something as to the number of licks that party back out here.' I says, 'Did you see the man?' struck his wife; he says, 'I heard the lick,' and He says, 'No.' I says, 'Did you run after him?' he made that statement more than once; I He says, 'No; I went to my wife.' I says, took the iron rod that he showed me and put 'What was your wife doing then?' He says, it into this opening over the left eye; I then 'She was sitting on the edge of the bed.' I said, "These wounds couldn't have been prosays, 'Did she holler?' He says, 'No; she said duced by one lick, and he said, "There might her head hurt her.' I changed my position then have been more than one lick;' I made a comto this side of the bed, and he was still stand-parison or test with that iron; I found a downing in his same position over by this window of ward glancing stroke on the wall; that wall the middle room, near the edge of the bed; was made of pine plank painted white, weather I went around then between the edge of the bed boarding; I went around and looked at it and I and the gallery, and I noticed that there was saw that this instrument had produced that, water on the floor; I says, 'What caused this had hit the wall there. It looked like there had water; how is this water here?' and he says, been more than one lick on the wall; I saw 'She vomited, and I washed it up'; he didn't that the wall had been indented in one or two say what she vomited. He says, 'I found the places, and that there was blood splashes below iron that he hit her with,' and he pointed down the indentation, running down that way, south. to the gallery post, right opposite here and just I know that I found as many as two indentaback of the gallery post on the ground, and tions there; the defendant motioned that the there was a bar of bridge iron laying there; he party was standing opposite Mrs. Brown's pilsays, 'It is a piece of railroad iron, a piece of low and about a foot and a half below the pilbridge iron.' I looked down through the vines low when he struck the wall, about a foot or there, and I saw this piece of iron laying in a foot and a half from the head of the bed, tothe front yard in front of the gallery; I didn't wards the foot; that was between the bed and disturb the body at all, I saw that nothing could the outer edge of the gallery, and he struck be done for her-didn't think she would live across the bed at him over here; I made a test more than an hour or two; I told him to start to see whether that could be done; the bed had a fire and get some hot water, and he went off not been moved at that time. to start the fire, and he brought me some cold water, and then he went off to start the fire and get some hot water, and in the meantime I believe the officer had come; I made an examination of that iron when he handed it to me; I think I saw that iron after Mr. Daniels came; I didn't bother anything until Mr. Daniels came; when I got there I found the deceased lying on the outer edge of the bed, lying up on a pillow; she was lying on the east . side of the bed, and her head was lying a little to the outer edge of the pillow and her face turned a little towards the wall, and she was lying on her back; she was dead to all appear- | "I think I saw the defendant that night stand on this spot and show the officer where this supposed burglar stood; the defendant had not been arrested at that time; the officer said he wanted to get right on the scene there as soon as he could, and the defendant proceeded to show him; at that time I stood at that spot where he indicated to the officer the supposed burglar stood and made the test; I stood at the head of the bed where he stood and tried to reach across the bed to the wall with this bar of iron; I stood just about here and tried to reach across; I stood about a foot or a foot and a half from the head of the bed, north, down the side of the bed, and tried to reach across the bed and strike the wall here; I was standing on the east side of the bed, and I tried to strike where this indentation was on the west side of the porch, and I couldn't reach it, I would fall short; I didn't measure the distance from the indentation on the wall to the place where the defendant said the supposed burglar stood. "After the defendant told me he came back out on the porch with his gun, he said that he got some water and bathed her face and put a wet cloth over her head, and there was a wet cloth over the wound when I got there; he told me, further, that the burglar stole his pants and this money, and that we would find the pants whichever way the burglar went; that he would throw them down; he told me that he had a $5 pearl-handled knife in those pants; he told me where he got that knife, but I don't remember now what he told me about that; he said he had some $4 in silver and a Woodman receipt in his pants; he first said he saw the man steal his pants here and run, and then later he says, 'He run south through the cane patch'; that was in response to the questions of the of ficer, Hard Daniels; he also told me that he had telephoned to me, and I asked him if he had called the officers, and he said, 'No.' "When I got there that night, down on the east side of the bed in front of the pillow, towards the foot of the bed, I found fragments of skull and brain tissue and lots of blood, hemorrhage; that blood was on the bedding, and Some between the bed railing and the mattress; I picked up all of these fragments of bone and put them on a table-there was a table sitting in here, and I afterwards picked up a number of fragments of skull on the ground in front of the gallery; there was also blood and brain tissue on the ground near the edge of the gallery; I found something like two tablespoonfuls of brain tissue there; I found that bed to be very bloody; the most of that blood was in the center of the bed on the east side; at that point the bed was very bloody, and there was brain tissue crushed against the bed and fragments of skull there; the pillow that she was lying on wasn't very bloody, the most of it was water; there was not a very large quantity of blood and water on the pillow, but most of it looked like water; if I remember right, the outer half of that pillow was covered with that; those pieces of bone that I found on the bed and on the ground were fragments of the frontal bone of the skull; they were fresh bones; they came from the frontal region, which region is over both eyes; this bone that I found was from over the right eye; the main wound was over the right eye; all of the skull was gone in the wound over her right eye for about an inch and a half or two inches square; I made my first examination of that wound by the light of an ordinary kerosene lamp, which made a poor light; I think after I moved her into the room, I gave her some hypodermic stimulants for her heart; I didn't make a careful examination of her body, I made a hurried examination of her body, because I wanted to get her moved from this bed; I never stripped her and made a close examination of her body after I took her in the room; I stayed with her until about 11 o'clock Sunday, and then I went to Brownwood and came back about 1:30 or 2 o'clock. I think she died about 8 or 9 o'clock Sunday evening, but I wasn't present when she died. "I have license to practice medicine, and have been in the practice 12 years; I am a graduate of Tulane University at New Orleans; I have been in the general practice part of the time and in hospitals part of the time. I have enough understanding of the brain and the head and the wounds to give an opinion as to whether or not it would have been possible for that woman to have set up in the bed and talked after receiving those wounds; in my opinion she could not have spoken. I made an examination of her skull to find out how many distinct wounds I could find on it; I found two large wounds, and I found the skin over this one was cut in a number of places and was ragged, and a horizontal wound over the left eye; her nasal bone was fractured, and you could see from the bulging out here that it was broken." Dr. McCarver testified he was county physician of Brown county, and after Mrs. Brown's death he testified he made an examination of the body. He says: "I removed the sheet over her head and observed the large wound over her right eye with my finger. I found that the bone was removed. I found no resistance on the part of the bone from the middle of the nose two inches to the left and a little over two inches above; I found that the bone was removed and on pressure I only felt a soft mass; that large wound was over her right eye; I found that from the center here above the nose two inches to the right in this direction the bone was missing; if I said the left before I meant the right; I found that the bone in this direction a little over two inches had been removed, or at least there was no resistance from the bone there. I found a flap of skin extending from the external angular process some inch and a half, and then a small flap of skin from that; this tag of skin was a perfect flap, and that was lying on the mass below, lying on brain clots and so forth. I found a wound above the left eye one-half inch above the eyebrow, 1% inches long, extending at an angle of about 15 degrees with the body, almost parallel, and then after pulling the skin back, I saw that the periostium or the thick covering that goes immediately over the bones, was cut at an angle of 15 degrees, and I noticed a notch in that periostium; the skin there was rather ragged, and I took my finger and went in here where I found no resistance on my right, and I found that that skull was fractured and depressed over the left eye; that fracture was something over two inches; I know it was fractured as far as I felt back, and I possibly run my finger back two inches or more. This is a human skull; I took this skull with me when I went to hold the autopsy; an autopsy is an examination of the body after death to see the extent of the injury; this is the wound that I spoke about over the left eye; this is the one in the skin; that is a smaller skull than the skull of the deceased; two inches here from the middle like will carry you almost outside of the skull. I bought this for a woman's skull, but it is not so wide as that of the deceased; two inches here from the center of this line will carry you outside of the skull, and it was actually two inches, for I measured it; now this other skull here comes nearer being the size of the skull of the deceased, and yet it is not as wide as hers was. I found that the bone was removed inside of this black line here, this bone was all removed, and from there down to here, all that bone was pressed back and had been knocked back into the brain, just perfectly loose; this part of the bone up here is what we know as the frontal bone; the superorbital plate is here above the eye, a part of the frontal bone; that is above both eyes; I found that the main part of the frontal bone here was not present and had been removed over the right eye, and extending one-third of the way of the left eye; I pulled pieces of the superorbital plate the length of my finger back in that brain, with my left index finger and my thumb; there being no bone here on the right side, I ran my finger in here to find if this wound over the left eye had fractured the skull; I found a depressed fracture over the left eye, and found that the bone was rough and had been fractured, and the mesial part on towards the center of the brain had been depressed; I found a wound across the nose an inch and a half long, almost in a hori |