mingled certain poison called 'strychnine,' or other poison, with water and coffee, with the intent to injure and kill H. P. Rucker and Elizabeth Rucker, and did not poison and kill Elizabeth Rucker, then you will find the defendant not guilty." This is substantially the same character of charge as given in the fifth paragraph of the charge of the court on the former appeal, and for the reasons in the opinion on the former appeal, which held said fifth paragraph illegal, we think this fourth paragraph, above quoted, is also illegal: Johnson v. State, 29 Tex. App. 151; Moore v. State, 28 Tex. App. 377.

Because the verdict of the jury is wholly insufficient, and because of the error in the fourth paragraph of the court's charge to the jury, the judgment is reversed and the cause remanded.

EVIDENCE-DECLARATIONS OF INJURED PERSONS ADMISSIBLE AS PART OF RES GESTE WHEN. -The declarations of a negro woman, made about half an hour after she was injured, showing when, how, and by whom she was injured, are admissible as part of the res gesta after her death, on the trial of the person accused of killing her: Lewis v. State, 29 Tex. App. 201; 25 Am. St. Rep. 720, and note; note to Rhodes v. State, 25 Am. St. Rep. 436; to the same effect, see Kirby v. Commonwealth, 77 Va. 681; 46 Am. Rep. 747, and note; Monday v. State, 32 Ga. 672; 79 Am. Dec. 314, and note; extended note to State v. Molisse, 58 Am. Rep. 184.

HOMICIDE-VERDICT FOR MURDER MUST SPECIFY Degree. Where the statute divides murder into two degrees, and provides that the jury must specify the degree, a verdict of guilty of murder, without specifying the de. gree, is bad, and no judgment can be rendered on it: State v. Rover, 10 Nev. 388; 21 Am. Rep. 745; Hogan v. State, 30 Wis. 428; 11 Am. Rep. 575. The jury before whom any person indicted for murder shall be tried, if they find such person guilty thereof, shall designate by their verdict whether it be murder of the first or second degree: State v. Lindsey, 19 Nev. 47; 3 Am. St. Rep. 776.

CRIMINAL LAW. ACCUSED ENTITLED TO PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT: See note to Rhodes v. State, 25 Am. St. Rep. 436. The guilt of an accused must be proved beyond a reasonable doubt: Bennett v. State, 86 Ga. 401; 22 Am. St. Rep. 465, and note; State v. Hoxsie, 15 R. I. 1; 2 Am. St. Rep. 838, and note; Mitchell v. State, 22 Ga. 211; 68 Am. Dec. 493, and note. An instruction that "defendant is presumed to be innocent until his guilt is established by the evidence, to the satisfaction of the jury, beyond a reasonable doubt," is a substantial compliance with the stat ute: McDade v. State, 27 Tex. App. 641; 11 Am. St. Rep. 216. The rule that in criminal cases the defendant is entitled to the benefit of a reasonable doubt, applies not only to the case as made by the prosecution, but also as to any defense offered: People v. Downs, 123 N. Y. 558. On a trial for mur. der, an instruction "that the absence of all evidence of an inducing cause or motive to commit the crime, when the fact is in reasonable doubt as to who committed it, affords a strong presumption of innocence," asked for by the defense, should have been given: Vaughan v. Commonwealth, 85 Va. 671.

MCLAIN v. STATE.

[30 TEXAS APPEALS, 482.]

BURGLARY FOOT-TRACKS, TESTIMONY AS TO, ADMISSIBLE. — On a trial for burglary, a witness may testify that he measured the foot-tracks found at the place where the burglary was committed; that he also examined the shoe that defendant had on just after the burglary; and that upon placing the shoe in the track, he found that it fitted exactly. Such testimony is not inadmissible as calling for the opinion of the witness. CHARGE OF COURT TO JURY MUST BE CERTIFIED AND FILED.—A charge of the court to the jury, which is neither signed by the judge nor in any manner certified by him, cannot be considered by the appellate court for any purpose, since the statute requires that such charge shall be certified by the judge, filed among the papers in the cause, and constitute a part of the record.

INDICTMENT for burglary. The opinion states the case.
Smith and Wear, for the appellant.

No brief on file for the state.

DAVIDSON, J. Over defendant's objection, the state was permitted to prove by the witness Long that he measured tracks found at the place of burglary; that he also examined the shoe defendant had on just after the commission of the offense; and that upon placing the shoe in the track, he found that it fitted exactly. The defendant objected to this evidence, because it called for and elicited the opinion of the witness, and was therefore inadmissible.

It was not error to permit this witness to state his opinion as to the comparison of the tracks and the shoe, and their correspondence with each other, nor was it error to permit the witness to state the result of his comparison of the shoe and the track after placing the shoe in the track. The admissibility of such testimony is not an open question in this state: Kemp v. State, 28 Tex. App. 519; Clark v. State, 28 Tex. App. 189; 19 Am. St. Rep. 817; Thompson v. State, 19 Tex. App. 594.

There is in the record what purports to be a charge of the court, but it is neither signed by the judge nor in any manner certified by him. We are not authorized to consider it for any purpose. Our statute requires that "the general charge given by the court, as well as those given and refused at the request of either party, shall be certified by the judge and filed among the papers in the cause, and shall constitute a part of the record of the cause ": Code Crim. Proc., art. 680; Williams v. State, 18 Tex. App. 409; Smith v. State, 1 Tex.

App. 408; Lindsay v. State, 1 Tex. App. 584; West v. State, 2 Tex. App. 209; Hubbard v. State, 2 Tex. App. 506; Henderson v. State, 5 Tex. App. 134. This omission was called to the court's attention in the motion for a new trial, but he promptly overruled the motion. We see no reason for such errors. The court should bow in submission to the express statutory will of the law-making power.

For this error of the court, the judgment will be reversed and the cause remanded.

CRIMINAL LAW-EVIDENCE-FOOT-PRINTS. On a trial for murder, the prosecution was allowed to prove that the committing magistrate had compelled the prisoner to make his foot-prints in an ash-heap, and that they corresponded with foot-prints found at the scene of the crime, and it was held. not error: Walker v. State, 7 Tex. App. 245; 32 Am. Rep. 595, and note The defendant's counsel, in the course of his argument in a trial for felony, said that the jury might try for themselves whether such boots as the witnesses for the prosecution described would make such tracks as they described. Some of the jury, without leave of the court, tried the experiment, and a verdict of conviction was set aside therefor: State v. Sanders, 68 Mo 202; 30 Am. Rep. 782; see State v. Graham, 74 N. C. 646; 21 Am. Rep. 493

LOPEZ V. STATE.

[30 TEXAS APPEALS, 487.]

INSANE WITNESS INCOMPETENT TO TESTIFY IN CRIMINAL CASE. — On a trial for rape, a prosecuting witness, who was insane at the time of the commission of the offense, and is insane at the time of the trial, cannot be permitted to testify over the objection of the defendant, under the provisions of the Texas Code of Criminal Procedure.

INDICTMENT for rape. The opinion states the case.

No brief on file for appellant.

R. H. Harrison, assistant attorney-general, for the state.
WHITE, P. J. Appellant was convicted of rape.

There is but one single question to be determined, in order to dispose of this appeal. The conviction rests mainly, as to the corpus delicti, upon the testimony of the prosecutrix. She was a negro woman; the defendant was a Mexican. She was crazy, and the Mexican had lost some fingers off of his hand.

This prosecution, however, was not based upon the latter clause of article 528 of our Penal Code, which makes it rape per se to have carnal knowledge of a woman being so mentally discased at the time as to have no will to oppose the carnal

act, the person having carnal knowledge of her knowing her to be so mentally diseased: Willson's Crim. Stats., sec. 905.

When the prosecutrix was called to the stand, defendant's counsel requested and was accorded permission of the court to test her competency as a witness upon her voir dire, the objection to her competency being that she was insane at the time the offense occured about which she was called to testify, and that she was still insane at the time she was proposed as a witness; that she did not possess sufficient intellect to relate transactions; and that she did not understand the nature or obligations of an oath. The court directed the examination to be had with regard to her competency, which resulted in the following questions and answers, as shown by the bill of exceptions:

"Q. What is your name? A. They put Mary Simmons 19 me this year.

"Q. What did they put to you last year? A. They put Mary Kirks to me.

"Q. What did they put to you the year before that? A. They put me in the prison.

"Q. Do you know what that gentleman there, the clerk, did when you and he held up your hands? A. No, sir.

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"Q. Do you know what he said to you? A. No, sir.

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Q. Do you know what it is to be sworn in court? A. It is to speak against the truth.

46

Q. If you were to swear falsely against this man and die, what would become of you? A. I would go to heaven and sing praises forevermore.

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Q. If you were to swear falsely against this man, what would be done with you here on earth? A. I guess I would be prosecuted or put under bond.

"Q. If you were to swear falsely here in court, do you think you would be punished? A. I don't know. I don't think I ought to be punished, because I have been punished enough already.

"Q. Do you know what you came here for? A. I guess I came here to read the fourth chapter of Proverbs.

"Q. Do you know on what day Christmas comes? A. No "Q. Do you know what day of the month the Fourth of July comes on? A. No.

"Q. Do you know what day of the week Good Friday comes on? No, sir.

"Q. Do you know what day of the week Easter Sunday comes on? A. No, sir.

"Q. What year were you born? A. In the year thirtythree.

"Q. Where were you born? A. In Texas.

"Q In what part of Texas? A. In Texas. "Q. Where is that? A. In Georgia.

"Q. Have you a husband? A. I used to have. "Q. He was a lawyer, wasn't he? A. Yes, sir. "Q And a doctor, too, wasn't he? A. Yes.

"Q. And wasn't he a preacher, too? A. Yes, but that wasn't part of his constitution.

"Q. How many children have you? A. Seven, I believe. "Q. They are all the same size, are they not? A. Yes. "Q. Where are they now? A. Some of them are in Texas and some over in the Red Sea.

"Q. What church do you belong to? A. The Catholic Baptist.

"Q. Have not you some fine farms? A. I did have, but dropped them all into my shipmate.

"Q. Who is your shipmate? A. Mr. Caldwell.

"Q. Where do you and your shipmate go? A. Down on the bay.

"Q. Where is the bay? A. Over in Georgia, by the Red Sea.

"Q. You travel a great deal, do you not? A. Yes.

"Q. How long do you stay? A. One, two, or three days.
"Q Where do you go? A. Up to Georgia.
"Q. Do you go to Europe, too? A. Yes, sir.
"Q. Don't you go to Asia, too? A. Yes.
"Q. Don't you go to Africa, too? A. Yes.

"Q. How do you come back? A. With my shipmate, on the bay."

The defendant's counsel here informed the court that he did not care to further examine the witness on her voir dire as to her competency, but would introduce other testimony on that point. Whereupon the court suggested that he would like to hear the witness questioned as to the case about which she was called to testify before passing upon her competency as a witness, and directed the district attorney, representing the state, to proceed and examine her as to the facts and circumstances of the case about which she was called to testify as a witness, stating to the counsel for the defendant that he