The offense is murder; the punishment, death.
Thе state’s testimony shows that the appellant killed the deceased, Sandra Jean Maywald, his seventeen-year-old girl friend by cutting her with a knife. The homicide occurred at the deceased’s home when no one else was present. When the officers arrived at the scenе they were met at the front door by the appellant who, with blood splattered on his shirt, glasses, and face, said “I am afraid I have just killed a person“You will probably want the knife that I killed her with too” and handed the officers a bloody bone handled one bladed knife. Appellant then directed the officers to a bedroom where the nude body of th deceased was found under a bed spread on a bed covered with blood, with the neck cut in two places. An autopsy performed upon the body showed that the jugular vein and carotid arteries were severed, the trachea cut, and that the cause of death of the deceased was hemorrhage from the severance of the jugular vein and carotid arteries.
The state offered in evidence appellant’s written confession, except certain pоrtions, made to the officers following his arrest in which he admitted killing the deceased and described in detail the circumstances surrounding the killing. In his confession appellant stated that on the day of the homicide the deceased called him and told him that she did not want to go with him anymorе and that the reason he went to her home was “I thought that maybe I could straighten things out with her.” In describing the details of the killing appellant stated that after they talked and the deceased had refused to continue to go with him he grabbed her around the neck and started choking and squeezing her; that when she fell back on the bed he wrapped a nylon stocking around her neck and pulled it with his hands; that he got his knife out of his pocket and remembered swinging it at her and that he realized that he was killing her. He further detailed how he then shut the front door, *628 checked the back doоr to see if it was locked, called the police and told whoever had answered that he had killed someone, then went to where the deceased was lying and cut a bathing suit she was wearing off her body, covered her body up with the bed spread, and then tried to call her mothеr.
Appellant’s sole defense was that of insanity and in support thereof appellant called Dr. R. M. Finney, a psychiatrist, who testified that he had examined the appellant and from the examination found the appellant was suffering from a mental disease known as schizophrenia of the paranoid type. Dr. Finney expressed his opinion that appellant was insane both at the time of the commission of the offense and at the time of trial. Dr. Howard G. Crow, a psychiatrist, who had also examined the appellant testified that appellant was suffering from schizophrenia and expressed his opinion that appellant was insane at the time of the commission of the offense as well as at the time of the trial. Appellant also called as witnesses a clinical psychologist, a psychiatric social worker, his parents and certain lay witnesses who testified in support of his defense of insanity.
The state called Dr. C. A. Dwyer, Harris County Psychiatrist, who testified that he had examined the appellant and that in his opinion the appellant, on the day of the homicide, had the mental capacity to know the nature and consequences of his act and that it was wrong. The state called certain lay witnesses whose testimony supported its contention that the appellant was sane. The state also introduced in evidence a judgment entered in a sanity hearing held lеss than a week before the trial in which the jury found the appellant to have been sane at the time of the commission of the offense and at the time of the hearing.
The jury chose to accept the state’s evidence and reject that of the appellant and we find the evidence sufficient to support its verdict.
Appellant filed, prior to the sanity hearing and main trial, a motion to require the district attorney to produce for appellant’s inspection his confession and reports of certain named doctors alleged to be employed by the city of Houston and Harris County which appellant alleged were in possession of the district attorney and contained evidence material to his defense. He also sought in the motion an order of the court authorizing his inspection of the records оf Faith Home, an agency of Har *629 ris County through which he was adopted into his foster home. The motion was denied by the court; no exception was reserved by appellant to the court’s action and no statement of facts of any evidence adduced upon hearing of the motion appears in the record.
Recently in Dowling v. State, opinion delivered March 19, 1958, 167 Texas Cr. Rep.____,
We find no error in the court’s action denying the motion.
Appellant objected to the judgment entered in the sanity hearing before the main charge when offered in evidence by the state on the ground that the court had lost jurisdiction because of the action of the district attorney in suppressing certain evidence in the proceeding. Upon the court’s overruling the objection appellant requested permission to then and there call witnessеs for the purpose of showing his claim of suppression and to perfect his bill of exception. In refusing such request the court advised appellant’s counsel that he would be allowed to introduce the testimony to perfect his bill of exception before the end of thе trial. The record does not reflect that appellant threafter tendered the witnesses for the purpose of perfecting his bill of exception. Under the record it appears that appellant was afforded full opportunity to perfect his bill of excеption and was not denied such right; hence, no error is shown. Weeks v. State,
*630
Appellant complains of the action of the court in permitting Dr. C. A. Dwyer, the state’s expert witness, to testify relative to his experience in observing and treating other prisoners of war in Billibid Hospital for Military Personnel in the Philippine Islands while he was a prisoner of war, over the objection that such testimony was highly prejudicial and an attempt to engender sympathy for the witness. In Morrow v. State,
Apрellant further complains of the action of the court in permitting the state on rebuttal to call the witness, Patrick H. O’Bryan, a newspaper reporter, for the purpose of impeaching certain testimony of Dr. Lawrence E. Freeman, the appellant’s foster fathеr, over the objection that it constituted impeachment on a collateral and immaterial issue and a proper predicate had not been laid. The record reflects that Dr. Freeman, while testifying as a witness in behalf of appellant, outlined in detail the apрellant’s life from infancy to the date of commission of the offense, testified in effect that appellant had led a disturbed and abnormal life and expressed his opinion that appellant was insane. On cross-examination Dr. Freeman denied that he had stated to a newsрaper reporter, on the day following the homicide, that appellant had always been “just a happy normal youngster” and that “I can think of nothing about his boyhood that would have anything to do with this.” After such denial the newspaper reporter, O’Bryan, was called by the state on rebuttal and testified that on such occasion Dr. Freeman did make the statements to him. Under the record it appears that a proper predicate had been laid for the impeachment of Dr. Freeman’s testimony and that it was upon a material issue; hence, no еrror is shown.
In submitting appellant’s defense of insanity to the jury in his charge the court instructed that in order to establish a defense on the ground of insanity it must be proved “* * * that at the time of committing the act the party accused was laboring under such defect of reason, from disease of mind, аs not to know the nature and quality and consequence of the act he was doing; or if he did know, that he did not know he was doing wrong, that is, that he did not know the difference between the right and the wrong as to the particular act charged against him” and that “* * * the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the *631 nature and quality and consequences of the particular act done and of the right and wrong of the particular act done.”
A similar charge was approved in Simpson v. State,
The jury returned into court the following verdict signed by its foreman: “We the jury find the defendant guilty of murder with malice aforethought and assess his punishment at death.” By motion in arrest of judgment and for new trial appellant questioned the sufficiency of the verdict on the ground that it was not responsive to the court’s instructions and did not determine the issue of sanity at the time of the commission of the offense or at the time of the trial. Under the court’s charge, which was drawn under the provisions of Art. 932a, V.A.C.C.P., prior to its repeal by the enactment of Art. 932b, V.A.C.C.P., Acts. 1957, 55th Legislature Ch. 486, page 1413, effectivе January 1, 1958, the jury was instructed that if they believed beyond a reasonable doubt that appellant killed the deceased as charged but further believed that he was insane at the very time he committed the act then it would find him not guilty on the grounds of insanity and let its verdict so state. The court further instructed the jury that in the event it found appellant insane either at the time of the commission of the act charged or at the time of the trial then it should let its verdict reflect its findings on the forms furnished them. The jury were further instructed that if it did not believe the appellant was insane at the time of the trial then it would find that he was sane.
The jury’s verdict under the court’s charge finding appellant guilty clearly evidenced the jury’s intention to find appellant sane both at the time of the commission of the offense and at the time of trial. In Chapman v. State, 136 Texas Cr. Rep.
*632
285,
“We think that a failure or refusal of the jury to make a specific finding thereon under the charge of the court is tantamount to a finding that he was sane at the time of the trial.”
We find the jury’s verdict under the court’s instruсtions sufficient and overrule the appellant’s contention.
In oral argument before this court appellant complains of certain jury argument of state’s counsel. There are no formal bills of exception complaining of jury argument. The entire argument of state’s counsel is before us in a separate statement of facts and an examination of the same does not show that appellant attempted to reserve therein by informal bill of exception any objections to the argument. We have, however, in view of the penаlty assessed, considered the entire argument of state’s counsel and find that it is- legitimate argument under the evidence.
We have carefully considered all other questions presented by the record and perceive no error. The record reflects the brutal killing of a young defenseless girl by the appellant without any legal justification or excuse. Appellant has been tried before a fair and impartial judge and jury and the facts warrant the action of the jury in finding him guilty and assessing the supreme penalty.
The judgment of the trial court is affirmed.
Opinion approved by the court.
ON MOTION FOR REHEARING
Appellant again urges each of the contentions advanced on original submission and discussed in our prior opinion. We are at a loss to know what we might add hereto that would be of benefit to the jurisprudence of this state unless we make it fully clear that this trial took place prior to the effective date of our prеsent insanity statute, Article 932b, V.A.C.C.P., and for- that reason there was at that time no statutory requirement that the jury in its verdict should make a finding as to the sanity of *633 the accused. Such has not been the case since January 1, 1958, and this case will not be considered as authority for any case tried since such date.
Appellant’s motion for rehearing is overruled.