The State's motion for rehearing agrees with Judge Beauchamp's opinion wherein he holds the evidence sufficent, but sharply challenges the holding that the indictment is bad. On the other hand, the motion agrees with the dissenting opinion of Judge Graves that the indictment is sufficient, but disagrees with the conclusion therein expressed that the evidence is insufficient.
We agree with the State in its position that in ordinary understanding the averment that deceased was "drowned" means that she was drowned in water. But to our mind the defect in the indictment does not occur at that point. It is not necessary to cite authorities upon the proposition that in an indictment for murder the means of death, if known, must be averred; if by shooting, that it was with a gun, if by cutting or stabbing or beating, the instrument with which it was done. So in the present case there should be an averment of some overt act of the accused which brought about the drowning of his wife, if such act is known. To illustrate, that he pushed her from the bank into the water, or that he pushed her out of a boat into the water, or held her head under the water. If the exact means employed to effect the drowning is not ascertainable the State may always protect itself by an averment that the means and manner of effecting the drowning is unknown to the grand jury. For the reasons above indicated we remain of the opinion that the present indictment is bad.
In regard to the second proposition of the State contending that a reversal should not be predicated upon the claim that the *Page 276 evidence is insufficient the present writer admits that upon original submission he was inclined to that view. The statement of facts has been particularly re-examined with that contention directly in mind, and I now find myself far from sure that my first impression was correct. The case does not turn upon whether a charge upon the effect of exculpatory statements should have been given, as was the question in Otts v. State, 135 Tex.Crim. R., 117 S.W.2d 463, but upon the effect of many contraditory and conflicting statements proven to have been made by appellant, which were evidently put in evidence by the State as circumstances along with others as tending to show appellant's criminal connection with the drowning of his wife.
The majority of the court is of the opinion that the reversal and dismissal of the prosecution under the present indictment should stand, and the State's motion is therefore overruled.