In asking leave to file second motion for rehearing, appellant sets out at length certain complaints which were in his original motion, and were considered and deemed not such as to call for reversal and which were not discussed in detail in the opinion overruling the motion. Proof of the relative size and strength of the parties to a homicide is ordinarily admissible in behalf of either party in a prosecution *Page 354 therefor. Ruling Case Law, Vol. 13, p. 822. While in some cases such proof upon the whole facts might be deemed irrelevant, it seems to have been generally held not of reversible effect. Taylor v. State, 41 Tex.Crim. Rep.; Lundy v. State,59 Tex. Crim. 131; Patterson v. State, 87 Tex.Crim. Rep.. In fact, we know of no case in which the admission of such testimony has been held sufficient to call for a reversal. In the instant case some time during the trial and before the evidence closed, the court admitted testimony showing that appellant was larger and heavier than deceased. Apparently, being of opinion when the testimony closed, that no issue had been developed to which such evidence was relevant, the court instructed the jury not to consider said testimony. The fact of the giving of such instruction has been held in numerous cases to cure the error, if any, of the admission of the testimony. In Miller v. State, 31 Tex.Crim. Rep. — a death penalty case, and in which case the admission of matter seemingly much more hurtful than that now complained of — it was held not cause for reversal, the court having instructed the jury not to consider the testimony. In Hatcher v. State, 43 Tex. Crim. 237, the rule seems to be laid down that only when the admitted testimony is of such damaging character as to suggest the impossibility of withdrawing the impression made by same, from the minds of the jury, would same be cause for reversal. To the same effect is Martoni v. State, 74 Tex.Crim. Rep.. The cases cited in appellant's application relate to matters of much greater import to the accused than that here involved. That one accused of murder who pleads not guilty to the charge, but, as appears in the instant case, in that connection offers to plead guilty to manslaughter — may not thus restrict or prevent the state from the full development of all material facts in the case, seems sound, the shooting of a woman in the same transaction in which the instant homicide occurred, and the conduct of the parties at the time, would be res gestae and provable. We deem the testimony of the finding of blood, etc., under the head of deceased, which was brought out in the development of the res gestae, not subject to complaint.
Regretting that we may not respond to the application, same will be denied.
Application denied. *Page 355