In count one of the indictment appellant was charged with a killing by striking with a piece of iron. This description of the weapon used was sufficient. The second count charged a killing by burning. The third count charged a killing by both burning and striking, but in the charge this count was eliminated by express direction from the court. The first and second counts were submitted to the jury, with instructions that in case a verdict of guilty was reached, the jury should state upon which count they based their verdict. This was proper practice. The jury specifically found appellant guilty under the first count, and the judgment and sentence followed the verdict.
We have carefully examined the numerous proposititons found in appellant's motion, covering nearly all the matters decided by us, and find nothing amiss save a slight error of inadvertence which has been corrected in the former opinion. Most of appellant's discussion apparently urges the inadmissibility of his confession, but same is really a complaint of the lack of evidence to establish the corpus delicti. Under all our authorities the state was entitled to introduce the confession upon the prima facie case of admissibility made by its witnesses who swore that the confession was freely and voluntarily made. Appellant having sworn to a different story, that said confession was untrue, and that same was extorted from him by threats and violence, the court below, again following our settled line of holdings, submitted to the jury the issue thus made, that is, whether the confession was or was not free and voluntary.
In said confession appellant admitted the killing of deceased by striking him with a piece of iron. There hence remained but the question of whether other testimony supported and *Page 104 corroborated this extrajudicial confession. To our minds the sufficiency of such other testimony is clear. Appellant said in the confession that he killed deceased Sunday night, and then burned the house, after taking the watch and shot gun of deceased; that he then went to Jim Morgan's house, talked to Morgan, and slept on his porch until daylight; that a couple of days later he soaked said watch to Davis, and sold the gun to Miles. In corroboration and support of this it was shown that deceased who lived alone, was alive and well as usual at 8:30 o'clock Sunday night; that he had his watch at said time, and his shot gun was lying on his bed; that about midnight his house was observed in flames; that next morning the dead body of deceased was found in the ashes of his burned house; that search for the metal of his gun failed to find it. Jim Morgan and another swore that on Sunday night about one or two o'clock appellant, carrying a double-barreled shot gun, came to Morgan's home and slept on his porch till day. Others swore to seeing appellant that day near the home of deceased with a double-barreled shot gun. His possession and sale of the watch and gun of deceased after his death was proven.
It is well settled that circumstantial evidence may be resorted to to show that the death of deceased was the result of violence inflicted. Porch v. State, 50 Tex. Crim. 335; Wilson v. State, 39 Tex.Crim. Rep.. This case bristles with such circumstances. The confession may be looked to in aid of other proof of the corpus delicti. Lott v. State, 60 Tex.Crim. Rep.; Kugadt v. State, 38 Tex. Crim. 694. We are not able to agree with appellant in his renewed complaint of any procedure.
The motion for rehearing will be overruled.
Overruled.