This case was affirmed at a former day of this term, and appellant has filed a lengthy motion for rehearing, in one ground of which he assails the statement in the original opinion wherein we said: "Sheriff Scarborough says he returned the next day and again searched the trunk; other witnesses would place it some days later." The criticism is that Sheriff Scarborough does not use the language we used in the opinion, and the inference is unauthorized that he searched the trunk on the next day. While we always try to be as brief as possible, yet when a statement is questioned we feel that we should copy the testimony, or that portion relating thereto. He testified:
"I arrested Andrew Harris on the 26th. Yes, sir, after that me and Mr. Craig went over there and made a search of his house; I don't remember when it was that we made a search of his house, *Page 264 whether it was the next day after I carried him from Carmine to the Giddings jail, but I think I came back the next day on the evening train. Emma Nickerson lived there at the house where Andrew Harris lived. Yes, sir, Lonnie Nickerson lived there too.
"In the search that me and Sam Craig made we found an undershirt in the bottom of the trunk; there were men clothing in that trunk. Yes, sir, we found a pair of pants just like this one with Andrew Harris' name on them (referring to pants handed him by counsel).
"Yes, sir, I found blood stains on that undershirt (referring to undershirt handed him by counsel and which has been introduced in evidence). I can see some of the stains there now; Dr. Suehs cut that piece out (indicating to the sleeve of the undershirt), he cut it out to make a test for human blood. Yes, sir, we found something else at that search; we found a jumper. Yes, sir, the shirt and jumper, in my opinion, had been washed. Yes, sir, found some stains on the jumper; found the jumper in a room, sort of kitchen, a sort of closet-like room. Yes, sir, I can see blood stains on that jumper now (referring to jumper handed him by counsel and which has been introduced in evidence); I taken it to be blood stains. I taken a pair of pants off of the defendant after he was arrested. Yes, sir, those are the pants that I took off of him (referring to pants handed him by counsel); yes, sir, one leg cut off or torn off; yes, sir, there was blood stains on the pants.
"Here is one on the hip pocket; it is not as plain now as it was then; yes, sir, there is a piece cut out of these pants; Dr. Suehs cut that out; it was cut out to determine what sort of blood it was.
"Yes, sir, I took some shoes off of him; yes, sir, that looks like the shoes I took off of him (referring to shoes handed him by counsel). As to what was the appearance of those shoes when I took them off, will say, there was blood on them, looked like they had been rubbed, washed; yes, sir, appearance of blood stains on the shoe now, you can see right along there (indicating).
"Shoes referred to above offered in evidence, and marked `Exhibit 10' by the stenographer, and made a part of this record.
"That's the hat he had on his head (referring to hat handed him by counsel). There was one stain on that hat somewhere that looked like blood, right on the brim; it was plainer then than it is now.
"Yes, sir, I saw that gun before (handing witness gun that has been introduced in evidence); got it out of Andrew Harris' house; it had stain of blood on it; it's right there (indicating). As to what was the appearance of that gun when we found it, will say, when we got this gun it had right recently been rubbed up and oiled, oiled in here (indicating) and all around in different places, and it looked like it had been freshly shot; as to how I know it had been freshly shot, will say, because you could twist a handkerchief in the barrel or stick your finger in there and they would be black; yes, sir, I did *Page 265 that, and I got fresh powder on my handkerchief, left the handkerchief black; the other gun was rusty, looked like it hadn't been used for a long time, the barrel was rusty."
It will be seen he says: "I arrested Andrew Harris on the 26th," and he and Mr. Craig went over there and searched the house; that he did not remember when it was he made the search, but thought he came back the next day on the evening train, and in that search he and Mr. Craig found the undershirt in the bottom of the trunk. If any other conclusion can be drawn from Mr. Scarborough's testimony than as stated in the original opinion, we fail to see how it can be done. It is true, other witnesses place the search at a later date, and we so stated in the original opinion. The sheriff further testified: "If Mr. Craig swore it was a week after that, I think he was mistaken." In the original opinion we stated what both witnesses testified, while appellant's counsel would have us find as a fact that Mr. Craig testified to the truth, while Mr. Scarborough was mistaken. Doubtless this is the view appellant's counsel takes of the case, but we are not supposed to have any bias, and to give what each witness states, and permit the jury in passing on the case the right to judge of the differences in the testimony of witness. It is not for us to so do.
The next contention of appellant is that we erred in holding the vest, undershirt, etc., admissible in evidence. The witness Mrs. Louise Koch testified:
"Yes, I was present at Andrew Harris' house at the time some officers were there; it was Sam Craig, Mr. Adolph Krueger and Fritz Homeyer; my sister-in-law was there, Mrs. John Weyand; yes, that's the lady that has just gone out of there. Yes, those officers, in my presence, searched a trunk; there was mens' clothing in that trunk. Yes, they found something in that trunk that I recognized as belonging to someone — a vest; yes, I had seen that vest before; as soon as I saw the vest I said it was Mr. Rudolph's vest. Yes, this is the vest they found (referring to vest handed her by counsel). Mr. Rudolph had a coat like that vest; no, he didn't have any pants to match the coat and vest; yes, I saw him wear the coat and vest when he went to church or to visit somewhere, or somebody was there to visit him; I couldn't tell you how long he had had that coat and vest; I don't know where he bought it."
The witness Mrs. John Weyand testified: "Yes, sir, I was with the officers at the time they made a search of the trunk at the house of Andrew Harris; Mr. Krueger, Mr. Homeyer and Mr. Craig made that search; Mrs. John Koch, and I think brother John was present. Yes, sir, there was something found in that trunk that I recognized as being the property of Mr. Rudolph; it was a vest; I can recognize that as my father's vest (referring to vest handed her by counsel and which has been introduced in evidence) as the vest belonging to Mr. Rudolph; yes, sir, I recognize this vest as belonging to somebody, *Page 266 I recognize it as being my father's vest; no, there was nothing else taken out of that trunk that I recognized that day as belonging to my father; yes, sir, I saw the other articles that were taken out of the trunk. Yes, sir, my father was in the habit of carrying something in the pocket of his vest, it was some matches, in the left vest pocket; yes, sir, when we found the vest there was some matches in the left-hand pocket; yes, sir, he was in the habit of carrying something else in some of the pockets, it was cigars; he carried cigars in the inside pocket; he carried them in this inside pocket (illustrating to the jury), that is tobacco in there (referring to the pocket); it came off of cigars, I suppose."
John Koch testified: "Yes, I have seen that vest before. I saw it when my papa had it on, Mr. John Rudolph." Adolph Krueger testified: "I live at Carmine; yes, sir, lived up there in 1909; I was deputy sheriff at that time. Yes, sir, I have heard of that burning down there at Mr. Rudolph's house. Yes, sir, I made a search of Andrew Harris' house in company with Mr. Craig and Mr. Homeyer; it was the next morning after Andrew Harris was arrested; yes, sir, Mrs. Koch was present; I found a vest in there and some clothes. I searched the trunk. Yes, sir, we found a black pair of pants in that trunk, but I didn't see his name on them at that time. Yes, sir, that is the vest I found (handing witness vest that had been introduced in evidence). . . . Yes, sir, the first time we examined the house was the morning after the defendant was arrested; yes, sir, there was some officers there and searched besides myself; Bud Sanders was there and Sam Craig; I went through the trunk really myself; they was standing by the side; yes, sir, I took everything out of that trunk — everything that was in it; there was some undershirts in there, never noticed whether any blood on them or not; yes, sir, picked each article out; yes, sir, I was examining for the purpose to see whether any of that stuff belonged to Mr. Rudolph, and also for any evidence of the crime; I don't remember of seeing an undershirt that was afterwards found with blood on it, some undershirts there similar like that one, similar to the thick-sleeve undershirt, the one that they found; I don't know how many we found the first search, two or three of them in there, I never counted them all; no, sir, I didn't examine them — just taken them out and just looked at them and laid them down. No, sir, I didn't find any undershirt with blood on it at the time I, Sam Craig and Bud Sanders investigated that trunk."
Sam Craig testified: "Yes, sir, I was present when the defendant's premises were searched the first time; he was arrested the night before; night before I searched the room; the search was made by myself, Mr. Sanders and Mr. Homeyer. I would not be positive about whether Mr. Adolph Krueger was there or not. I am not positive that Mr. Krueger was there the first search. As to what we found in the first search will say, it seems to me there, if I am not *Page 267 mistaken, I think the vest was taken out of the trunk; found also some guns, two Winchesters, shotgun and a pistol; the Winchesters were standing up behind the door like in a kind of a scabbard made out of cloth — oilcloth; I don't remember now whether the two Winchesters and the shotgun were together or not; the pistol was laying upon a kind of desk-like thing — dresser, I suppose. Emma and Lonnie Nickerson lived with Andrew Harris at that time. Mr. Krueger searched the trunk; yes, I was there when it was searched; I ain't positive whether that trunk was in the east room or the west room; yes, sir, the trunk was in the room where I found the guns; yes, sir, there was a bed in that room.
"Yes, sir, there was a second search made; I don't know exactly how long it was after he was arrested, about a week, something like that.
"Yes, sir, found a pair of pants in the trunk in the first search; yes, sir, I think them is the same pants (referring to pants handed witness by counsel) we found there; yes, sir, we found mens' clothes in that trunk. Yes, sir, the pants that we found in the trunk have Andrew Harris' name on them.
"Mr. Scarborough was there at the second search; I don't remember whether Mr. Sanders was there; found the undershirt and jumper at that time we found the undershirt in the trunk; found the jumper in the kitchen or dining-room, all one room, hanging up on a nail behind the door. Yes, sir, I think that's the vest we found in the first search. Yes, sir, that is the undershirt and jumper.
"Found blood stains on that handkerchief; found blood on the jumper; yes, I think that is the shirt we found in the trunk in the second search. Yes, sir, we cut that piece out of there for Dr. Suehs at Carmine, for him to analyze for human blood, to see whether it was human blood; yes, sir, Dr. Suehs did that; yes, sir, the stains are darker now than they were when this happened; yes, sir, found some blood stains on the jumper; yes, the blood stain is darker now than it was when I first found it. My opinion was that the undershirt and jumper had been washed, I couldn't tell. Yes, sir, found some blood stains on one of these Winchesters; yes, sir, those are the two guns we found in the house (referring to guns handed witness by counsel); there is a blood stain on this gun right under here (indicating) under the bottom of the gun; the appearance of that gun seemed to have been oiled; the appearance of the other gun was rusty — rough."
The testimony of Sheriff Scarborough has heretofore been herein copied. It will be seen that the witnesses say that Mr. Krueger took the things out of the trunk the morning after defendant was arrested when the vest was identified as belonging to one of the deceased; that he says, "I was examining for the purpose of seeing whether any of that stuff belonged to Mr. Krueger and for any evidence of crime." He furthermore says he found two or three undershirts in *Page 268 that trunk, and they were similar to the thick-sleeve undershirt, which was later gotten out of the trunk by Sheriff Scarborough. It is true he and Mr. Craig did not notice any blood stains on the undershirt, but from his testimony they were, in the main, looking for things belonging to deceased. Mr. Scarborough returns and searches this same trunk and finds an undershirt with blood on it, and Mr. Krueger says an undershirt of that kind was in the trunk when the first search was made. Sheriff Scarborough thinks it was the next day. Mr. Craig says he does not know how long after the first search, but estimates it about a week or something like that. As held in the original opinion, the vest was clearly admissible in evidence. As to the evidence about finding the undershirt, one like the one with blood on it being seen in the trunk at the time the first search was made, immediately after defendant's arrest, the fact that those first seeing the undershirts in the trunk did not notice blood on any of them, while Sheriff Scarborough later finds blood on one of them, would go to the weight to be given to it as testimony and not to its admissibility.
The next ground in the motion complains because we held that bills of exception eight and eleven would not be considered in passing on the case, although discussed in the original opinion, and in the motion for rehearing it is insisted that we, having gone to the statement of facts and said, if the question was presented in a way we could consider it we would hold the truss inadmissible in evidence, should reverse the case.
Let's see: The motion made was to strike out the testimony of Sam Craig (bill No. 8) in reference to the vest, the undershirt and jumper, and the finding of the truss. Mr. Craig did not testify anything about finding the truss. He says he was not there when the truss was found, and we have held the other articles admissible. So if we should consider this bill, it would present no error, and the court did not err in refusing to sustain the motion to strike out Mr. Craig's testimony. Mr. Krueger testified he was not present when the second search was made, and, therefore, was not present when Mr. Scarborough took out the undershirt with blood on it and found the jumper. However, he says he was present when the vest and truss were found. If the court had sustained the motion, the testimony of Mrs. Koch and Mrs. Weyand and Sheriff Scarborough would still have been in the record as there was no motion to strike out their testimony. All this testimony had gone in without objection, and the testimony of the witnesses who saw the vest found in the trunk and identified as the vest of deceased would still have been in evidence to be considered by the jury. There was no motion made to exclude the testimony of Sheriff Scarborough, and no motion made to exclude the testimony of other witnesses who testified to finding these other things. As before stated, all this testimony was admitted without objection, so far as this record discloses, and if the court had *Page 269 sustained the two motions, testimony as to the finding of each and every one of these articles would still be in the record, and would have been before the jury for their consideration in passing on the case. As the evidence has gone in without objection, a motion made to strike out the testimony of only one or two witnesses, leaving the testimony of a number of other witnesses to the same facts in the record, if we considered the bills there would be no such error as should or would result in a reversal of the case. In the case of Wagner v. State,53 Tex. Crim. 307, it was held by this court that "it is well settled in this State that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony," citing Rogers v. State, 26 Texas Crim. App., 404; Walker v. State, 17 Texas Crim. App., 16; Johnson v. State, 26 S.W. Rep., 504; Stephens v. State, 26 S.W. Rep., 728; Logan v. State, 17 Texas Crim. App., 50; West v. State, 2 Texas Crim. App., 460, and Carlisle v. State, 37 Tex.Crim. Rep.. However, the bills are subject to the objections stated in the original opinion, and we have only discussed them at the earnest solicitation of counsel for appellant, for they present the case as if the court had sustained their motion to strike out the testimony of Craig and Krueger in regard to these articles, that there would have been no testimony connecting defendant with them. However, by reference to the testimony of Mrs. Koch, Mrs. Weyand and Sheriff Scarborough, herein copied, and the other testimony in the case, the same case would have been presented to the jury, by the testimony admitted without objection, with only two witnesses less swearing to the facts, and this could make no material difference, because no witness swore to a different state of facts in regard to these articles.
The only other matter in the record relates to the sufficiency of the evidence to sustain the verdict. We have again carefully read the evidence, and while it is a case of circumstantial evidence, yet, taking appellant's words, conduct and acts on the morning after the burning and murder, and his conduct and acts throughout that day, together with the circumstances detailed by the witnesses above named, and that Dr. Suehs says it was human blood on those garments, and the other circumstances in evidence, we think the testimony sufficient to support the finding of the jury. The fact that the vest, which is identified by three witnesses as the vest of one of the deceased, was found in appellant's trunk, and there being no explanation in the record of his possession of this vest, is a strong and material circumstance, and of the admissibility of this vest in evidence there can be no question. All the argument of counsel as to the sufficiency of the evidence was doubtless presented to the jury with equal or more force than here presented, and the jury finds against that contention.
It is true that every person in this State, white or black, as stated by appellant, is entitled to a fair and legal trial. But what is a *Page 270 fair and legal trial? When testimony is offered by the State or the defendant, and no objection is made to its admissibility, neither the trial court nor this court can make objections to it; nor can we review the testimony in this respect without objection having been made. And the testimony having been admitted without objection, if it is desired subsequently to exclude it, a legalmotion must be made to accomplish that purpose. If a motion insufficient legally is made, it must be treated as though no motion had been made.
We wish to state here that it has been made to appear to us that the able counsel for appellant, on account of sickness and other causes, were prevented from themselves preparing the bills of exception, and were compelled to depend upon one not an attorney to prepare them. It is to be regretted that counsel, through no fault of their own, were prevented from preparing their bills and presenting the matter as they desired, yet this does not authorize us to step beyond the bounds of law and consider matters not legally before us.
The motion for rehearing is overruled.
Overruled.