Appellant predicates a motion for rehearing upon two propositions; the first being that we were wrong in holding that bill of exception number three complaining of the admission of the testimony of W. E. Claybrook presented no error, and the second being that we were in error in failing to find that the evidence did not show an intent to kill.
Upon the first proposition it is difficult to express our views any clearer than they appear in our original opinion. *Page 295 The entire record has again been reviewed, and the original brief of appellant and the authorities cited by him have again been examined. The alleged error of the trial court in admitting the testimony of Claybrook was again argued in the motion for new trial, and at that time the trial court had before him the evidence of all the witnesses who had testified in the case, and had opportunity to judge by comparison whether Claybrook recalled and related clearly and intelligently the events of the killing. With the exception that Claybrook claimed to have actually seen appellant strike deceased with the blackjack we discern little, if any, material variance between his testimony and that of other witnesses as to occurrences preceding and following the actual assault. The trial court saw the witness and heard him testify, and in that regard is in much better position than we to judge whether he could and did recall and relate the facts of the killing clearly and intelligently. Realizing the importance of the matter, we have again given the question our serious consideration, but have been unable to reach the conclusion that the trial court committed error in permitting Claybrook to testify.
As to the second proposition upon which appellant urges a rehearing; we observe that the learned trial judge instructed the jury, in substance, that unless they believed from the evidence beyond a reasonable doubt that appellant intended to kill deceased they could not under the law find him guilty of murder. It must be presumed that the jury followed the court's instructions unless it can be said that no evidence is found in the record upon which the jury could base a finding of intent to kill. In determining such intent all the facts in evidence may be looked to. It is established beyond question by all the witnesses that appellant made an uncalled for and unprovoked attack upon deceased. The jury was amply warranted in finding that the assault was committed with a blackjack. The character of the wounds inflicted followed by the immediately death of deceased, may be looked to in determining whether the instrument used was deadly in its nature. Sec. 1587 Branch's Ann. Texas P. C. The witness Armstrong saw nothing in appellant's hand at the time he was striking deceased, but testified that he saw a blackjack in appellant's possession — "* * * two or three hours after he (deceased) died. He (appellant) was tearing them up at that time. He always had it in his possession is the way I would answer your question as to whether I seen him with that blackjack in his possession the day before this happened." *Page 296 The description of the particular backjack referred to by the witness Armstrong is found in the original opinion, and is not repeated here. Another witness, Ray, testified that it appeared like appellant hit deceased with his fist. He saw no weapon in appellant's hand. This same witness testified that after deceased had been struck he was placed on a mattress. He follows with this testimony: "I don't know whose mattress that was to start with, after they took the man out it was folded up and put on that back bunk you see right in front of the shower. Then Ed told me to get my mattress and bring it out, and he told me to get that little new mattress on the back bunk and I got it and carried it to my bunk and I seen it was the one that man had laid on; it had blood that had run out of that man's nose, and I knew why it was given to me. That was the mattress I had to sleep on after that." He also testified that he saw appellant with a blackjack "that morning right after this happened," and that he had seen him with a blackjack the day before it happened. Other witnesses also testified that appellant had a blackjack the day before the assault was committed. Witness Barber saw the assault but disclaimed seeing anything in appellant's hand at the time, but saw appellant tear up a blackjack immediately after deceased's body was removed from the cell where the assault was committed. This witness further testified that appellant said to him regarding witness going before the grand jury — "You tell them that I was asleep, and did not know anything about it," and that shortly after the assault appellant said to witness, "Barber, you were asleep this morning when this happened," and when witness denied having been asleep appellant said, "Yes, you was." Said witness further testified that after deceased's body was removed he saw appellant tearing up some blackjacks, the pieces of which he threw in the garbage can and sent the can out. We have not undertaken to set out the evidence in full, and refer to our original opinion for the statement of additional evidence in connection with what has been here mentioned. Two witnesses testified positively and in detail to having seen appellant strike deceased two blows with a blackjack. Even without said positive testimony the jury would have been warranted in concluding that such was the weapon used. Appellant's efforts to suppress the testimony of witnesses to the killing, the shifting of the bloody mattress, the destruction of the blackjacks, the character of the wounds evidencing the force of the blows and the deadly character of the instrument *Page 297 used, in connection with all other facts and circumstances in evidence, supports the jury's finding that appellant struck deceased with a blackjack, and that the same was a deadly weapon, and also warranted the jury in reaching the conclusion that appellant intended to kill deceased.
So believing, it is our duty to overrule appellant's motion for rehearing, which is accordingly so ordered.
Overruled.