Appellant was convicted of murder in the second degre, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years.
Appellant's bill of exceptions number 1 complains that the court permitted witness T.B. Whitford to state his official position at the time he testified in this case. Witness answered that he was a justice of the peace. Appellant's sole contention is that the testimony is immaterial. It is always proper for a witness to state his official position: at least it was not improper in this case.
While this same witness was on the stand, he was asked: "Did you see any other tracks there like those you described awhile ago? A. Yes, sir; there were tracks that were near, and they went around and passed over the feet of the corpse; that is the way it looked to me." Appellant objected on the ground that this was leading, and it was improper for witness to state "how it looked to him." We do not think the question was leading; nor do we think it improper for the witness to state the direction in which the tracks appeared to be going.
After identifying the pistol used by appellant on the occasion of the killing of deceased, together with the cartridges and hulls in it, they were all introduced in evidence. Appellant objected, because immaterial, irrelevant, incompetent and prejudicial and calculated to injure *Page 232 the rights of appellant. It is always permissible to introduce in evidence the pistol used in the killing, and the cartridges and hulls in such pistol, if any. In this case they were admissible not only to show the size, but to illustrate many phases of the evidence.
During the progress of the trial, a bullet was introduced that was taken out of the ground where the head of deceased is supposed to have lain. Appellant objected to the introduction of this bullet for the following reasons: because immaterial, irrelevant, incompetent and calculated to injure the rights of appellant; too remote from the day of the homicide to the finding of the bullet, being more than one hundred days after the homicide. And because statement, acts, conduct and declarations of third parties not made in the presence of appellant. Witness Webb in testifying about the bullet, stated that he supposed he dug a hole some two and one-half or three inches long, with a pocket knife, under the place that he identified as where the head of deceased lay on the day of the homicide, and immediately thereafter, and while digging the hole Hamm picked up the bullet and handed it to witness. The premises had been changed somewhat; the fences torn away: but the hole dug was under where deceased's head lay as above stated, as witness remembered it. This was on May 24, 1903, and the killing occurred on February 11. The bullet was battered. Witness "saw where the bullet had been imbedded in the ground, in the edge of the hole where I dug with my knife." Whitworth testified that the battered bullet found by witness Webb was a 44-caliber-bullet, and would fit either the pistol of deceased or appellant. In the opinion on the former appeal,45 Tex. Crim. 297, in reference to the introduction of the bullet, we held, that the same was too remote, because there was no identification of the bullet in any way, showing how it could be connected with this homicide. However, in this record we find that the State has introduced testimony showing that the bullet was the same size of those found in appellant's pistol; and furthermore, the witness appears to have thoroughly identified the place where deceased's head lay. While it is true that this record shows that it was something like one hundred days after the homicide before the bullet was found; cattle had run over the land and other things had been done that might destroy the identity of the spot, still these circumstances would only go to the probative force of the testimony and not to its admissibility. In this record we have the State showing that the bullet was exactly the same size and caliber of appellant's pistol, and that the bullet was found in the ground under the place where deceased's head had lain. We think that this renders the testimony admissible. There was no res inter alias acts and declarations proved in this record, as on the former appeal.
On the cross-examination of appellant, the State was permitted to ask him the following question: "You have testified in this case before? A. Yes, sir. Q. How many times? A. I think this is about four times. Q. Did you testify on the trial of this case at *Page 233 Haskell, this way?" — Appellant objected on the ground that it is immaterial how many times he had testified in this case before this time, and was calculated to prejudice the jury. The objection was overruled. "Q. Have you not testified on all the trials?" Appellant objected on the same ground. Objection overruled. The questions were legitimate cross-examination of appellant. It seems that appellant on this trial testified that he did not know the distance they were standing apart just prior to the difficulty; but on the former trial he testified that he and deceased were standing about arm's length apart.
Appellant objected to the court permitting the witness Baxter Fortenberry to testify that deceased's daughter had attemped to hire witness to whip her father, deceased; and permitted said witness to testify that deceased's daughter had spoken very unkindly of her father. This testimony was subsequently excluded by the court. This testimony was not admissible, but the procedure was not such error as authorizes a reversal.
Appellant insists in his motion for new trial, that the verdict of the jury is contrary to the law and the evidence. The State's testimony shows in substance that appellant agreed to act for deceased's wife in the division of property, — deceased and his wife having agreed to separate. Appellant and deceased went to the lot, each standing at the fence, whittling thereon; when appellant shot deceased in the head, and after he was prostrate on the ground shot deceased again in the head. A bullet was found in the ground immediately under the place where deceased's head had lain, which corresponded in size with the bullets in appellant's pistol. Deceased's knife was found open, lying by the fence. Appellant's knife was not found. A pistol was found lying in deceased's hand, in such manner as to indicate it had been placed there by someone. The above are the proper and legitimate deductions from the State's testimony. It is true that appellant testified to a perfect case of self-defense, and testified to deceased having shot him through the brim of his bat, and through his coat. However, the State's evidence strongly suggests that these shots were placed there by appellant himself. We think that the jury were amply warranted in their verdict. There is no error in this record, and the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING. May 1, 1907.