That deceased was intensely hostile toward appellant appears in the record without dispute, and that he had made *Page 79 threats to do him all sorts of harm, extending from sending him to hell or to the penitentiary down to getting even with him, also appears without dispute. These threats were both communicated and uncommunicated. We think our former opinion correct in holding it not error to refuse a third application for continuance to procure witnesses to testify to threats and abusive language. It seems well settled that where a proposition involved in a case has been supported by abundant testimony and is in nowise controverted, that it is not an abuse of the discretion confided in the trial judge to deny a new trial sought in part upon the refusal of a continuance to secure absent witnesses to give testimony substantially cumulative of the facts testified to before the jury. All of our decisions are to the effect that unless it appears reasonably sure that the absent testimony would have brought about a different result, it is not error to refuse the new trial.
From all the testimony in this case, — that of sheriff Brice, that of Dr. Winn and of appellant himself, — it would appear reasonably certain that the shot fired by appellant was from the rear or nearly so, of deceased. Much of the testimony on this point is set out in the original opinion in discussing appellant's bill of exceptions No. 6, which presents complaint that sheriff Brice was allowed to testify in substance that from the location of the chair in which deceased was sitting, and of the flesh, paper and shot holes in the wall beyond deceased, that the person shooting was bound to have been behind deceased and near the west side of the door. The position of the chair with its back toward the door was in testimony. The fact of the shot holes in the walls south of said chair, in which shot holes were bits of flesh and paper, and the fact that the door was north from said chair, were all in testimony and not controverted. The sheriff had testified without seeming objection that a line drawn from the shot holes, etc., in the wall past the chair would go near the west side of the door in which appellant admitted himself to be standing at the time he fired the fatal shot. On original presentation we held have been admitted, but we could not bring ourselves to believe that this statement of the sheriff to be an opinion and that it should not it was a hurtful opinion inasmuch as it seemed to coincide so entirely with the other facts. We find nothing in appellant's testimony which in any way suggests that when he shot deceased he was not behind him but on the contrary we observe that he testified when he stepped up to the door of the room in which deceased was sitting reading and spoke to him, that deceased "looked back at him;" nor does the testimony of appellant that when deceased saw him he dropped his hand toward the table by which he was sitting, justify the conclusion that this is any way placed deceased in a strained, abnormal or uncomfortable position. Appellant said that deceased was sitting in said chair when he fired, and and that after he fired and until he *Page 80 walked away from the door deceased remained sitting in the chair. The mere fact of dropping his hand toward a table or under the table did not apparently, according to the testimony of appellant himself, change the position of the body of deceased. These facts being true, we think it correctly held in the original opinion that the testimony of Dr. Winn as to the fact that from the character of the wound that went through the neck, jaw and chin of deceased, he was in a normal, easy and comfortable position when shot, should not reverse the case. We are required by the statute to famaliarize ourselves with the statement of facts in every case and are justified in trying to ascertain the possible injury of matters complained of in a bill of exceptions, in resorting to what appears otherwise in the record. Dr. Winn had given a demonstration to the jury by moving his head from one side to the other and holding it up and backwards, etc., of what could not have been the position of the head of deceased at the time of the shooting. The jury could see these matters of demonstration to an extent which can not be fully set out in the statement of facts. The doctor was a physician of experience and would appear to have been trying to reproduce as nearly as he could to the jury the impression that was made upon his mind by an examination of the wounds in the head and neck of deceased. While we did say in the original opinion that this statement was such an opinion as should not have been allowed, still said testimony was not far removed from the rule laid down by many authorities in this State that when one is attempting to reproduce an effect produced on his mind by a situation which can not be reproduced or made palpable in the concrete, that he may give his opinion. See Branch's Annotated P.C., Sec. 131 for collation of authorities. The language used by the doctor in expressing the impression produced on his mind by what he saw, may be complained at as going too far, but as stated by us already, it would not seem to be contradictory to any testimony given on behalf of the accused. It would appear that one versed in anatomy might easily tell from an examination of a wound which had penetrated muscles of the body, that said muscles were strained or relaxed; that they were bent or pulled to one side or the other, or like testimony. It would not appear to us to be an erorr for which a case should be reversed, that the language selected by the witness in which to express his opinion might be such as would justify complaint, unless it also appeared that the language used or the statement made was susceptible of harmful effect. Judge Hurt in Steagald v. State, 24 Texas Crim. App. 213, passed upon a much less admissible opinion and announced a rule seemingly applicable as follows:
"Upon the trial the State propounded this question to Doctor Ferris: `What in your opinion, from the examination you made of the body, as to how the injuries you saw, to wit, the arm broken, the neck broken and the skull crushed was done?' This question was *Page 81 objected to by appellant, because `it called for the opinion of the witness as an individual, and not as an expert; was mere speculation on the part of the witness, and was matter about which the jury were as competent to judge as the witness.' The objection being overruled, the witness answered: `I am of opinion that the only way it could have been done, or the only way I can imagine, is that the party put the infant on its face and placed his boot heel on the back of the head, and caught hold of the right arm and pulled it, and stamped on the back of the head, crushing the skull and breaking the neck and arm.' `Witness Ferris also stated that this opinion was not as an expert, but as individual, and the injuries might have been inflicted in many other ways.'
The objection should have been sustained upon the grounds urged. Incompetent, however, as it clearly was, did the opinion of the witness, as to the manner in which the injuries were inflicted, operate to the injury of appellant's rights? Do the facts stated in the opinion of the witness tend to establish the corpus delicti. That is to say, that the child met its death, after being born alive, at the hands of some person by violence? They certainly do; but was not this completely and conclusively established by competent evidence, independent of Doctor Ferris's opinion. * * *
Now, we believe that if it be possible to establish any fact conclusively, the fact of the corpus delicti, that is, that the child was born alive and came to its death by violence, this fact is so established in this case. And, conceding that the opinion of Doctor Ferris tended to prove the corpus delicti, since there could not be a rational doubt as to this, the opinion could not have injured appellant's rights."
There appears no error in the admission of testimony of the fact that early the next morning after the homicide a witness found three new 12-guage shotgun shells near a telephone post in front of a store where it is shown by other testimony appellant had passed along the preceding night, and after the shooting. Appellant used a 12-guage shotgun in killing deceased. He claimed that when he drove his car up near the court house just before the shooting, he got one shell out of his hunting coat pocket in the car and loaded the gun before going to the court house where deceased was. The shooting occurred about 9 or 10 o'clock at night. The shells were found about 7 o'clock the next morning. The finding of the new shells of the size used by appellant, and at a place where he had passed along on the night of the homicide, might be taken as a circumstance showing him to have been in possession of more shells than the one placed in his gun, and thus may have weight in determining his deadly purpose in going to the courthouse.
Nor have we been able to conclude in the face of all the testimony that the court erred in submitting the law of provoking a difficulty. Whether appellant was an avowed enemy of deceased or not, he knew, according to his own testimony, that deceased entertained *Page 82 bitter enmity toward him. According to the defensive testimony the wife of appellant told him a few moments before the killing that deceased had let her have money and thereupon appellant left and went at once to where deceased was, taking a shot-gun with him which he loaded after getting out of his car near the courthouse. Appellant admits that he was mad. He saw deceased sitting inside his own office reading. He admits that he took his gun, loaded it, walked into the courthouse, went to the door of the office of deceased, said "Mul" and almost immediately shot deceased who was sitting in the chair, and who never got up or attempted to get up from the chair, or made any move to advance upon appellant, the only things attributed to deceased by appellant himself being that he said, "You son-of-a-bitch," and dropped his hand toward or under a common table about three feet high near which deceased was sitting. Appellant saw no weapon on the table, under the table, in or near the hands of deceased; in fact it was shown there was no weapon about the table, though this fact was not known to appellant. The paper which deceased was reading was not even dropped, but was shot full of holes. The left leg of deceased was penetrated by one shot which ranged downward, a most significant fact in view of the testimony of witnesses who had been to the office of deceased shortly before the shooting and said that he was sitting in a chair reading with one or both feet up against the table. Appellant said he went to the court house to get deceased to desist from his abuse of him. This may have been true but his choice of a time to go, his going alone, armed, mad, — were very unfortunate. His conduct immediately after the shooting in fleeing from the court house as told by sheriff Brice, his act in putting the recently discharged gun in his father's room, his return to the immediate vicinity of the homicide, his remarks and conduct while there, — all doubtless had weight with the jury in determining their solution of the case against him.
Believing a correct conclusion was reached by us in our original opinion, the motion for rehearing will be overruled.
Overruled.