Upon trial of burglary by shooting into a house with intent to injure, there was no error in admitting testimony of previous assaults and assaults and batteries by defendant upon prosecutrix, and such testimony need not be limited in the court's charge, although the court did so limit the same. Following Millican v. State, 63 Tex. Crim. 440, and other cases. 5. — Same — Evidence — Supporting Testimony.
The early cases establishing that no limiting instructions need be given as to evidence showing motive equated malice with motive, so that it was often said that evidence showing either need not be limited. See Millican v. State, 63 Tex.Cr.R. 440, 140 S.W. 1136 (1911). At the same time, they required that evidence showing intent be limited.
press such improper conduct and check its repetition; however, while demonstrations are always improper, it does not necessarily follow that they are of such nature as to affect or influence the minds of the jury to the prejudice of the accused; if, from the record, such demonstrations do not appear to have affected or influenced the minds of the jury to the prejudice of the accused then they are neither grounds for a new trial nor reversal even though the court does not take immediate steps to suppress such or prevent their repetition; this is especially so, where there is no showing that such demonstrations either continued or were subsequently repeated after the matter was called to the attention of the court; the crucial question is always whether or not such manifestations were prejudicial to the rights of the accused. 39 Am.Jur., § 94, p. 108; 53 Am.Jur., § 43, p. 56 and sec. 997, p. 692; 23 C.J.S., Criminal Law, § 1449, p. 1207; 24 C.J.S., Criminal Law, § 1903, pages 910 911; Millican v. State, 63 Tex.Cr.R. 440, 140 S.W. 1136. On the record before us there is no showing that such manifestations did not cease immediately upon the request of counsel that the mother and daughter be removed from the courtroom; there is nothing in the record which in anywise indicates that the demonstrations were at any time thereafter repeated; error is never presumed, it must be shown.