I agreed to the original opinion, but on the motion for rehearing appellant has made a strong assault on the action of the court affirming the case, and particularly as to the action of the court in admitting the testimony concerning the death of Sallie Raney's baby; and I have been induced to give this matter a more thorough investigation. In order to present my views I here copy the bill of exceptions which raises this question in full: "Be it remembered that on the trial of the above numbered and entitled cause the following proceedings, among others, were had: The State offered to prove by Dr. J.R. George the death of the deceased's baby, a short time prior to the death of deceased; and also offered to prove the circumstances connected with the death of said baby, to which evidence defendant then and there objected, because of its immateriality and its irrelevancy. The court asked the purpose of said proffered testimony, to which the district attorney, James P. Kinnard, who was conducting the prosecution, in the presence of the jury, replied that the purpose of said proffered evidence was to show a motive in the defendant for the crime for which she was on trial. The court then and there overruled the objection of defendant, and permitted the State to prove by said witness that he had been called to see the baby of Sallie Raney; that he was called one evening about 5 o'clock; that he did not consider the baby seriously sick, but left four powders to be given it; that he was sent for next morning about 10:30, and went over and found the baby dead, — to which evidence defendant objected, and, the court having overruled said objection, *Page 143 defendant then and there excepted. Be it further remembered that the State offered to prove by Mrs. J.R. George (wife of Dr. George), the death and circumstances of said baby's death, and defendant objected for the same reasons as above set out to Dr. George's evidence on this point. The court overruled defendant's objections, and permitted Mrs. George to testify: That, on the morning after Dr. George had gone over to see the baby in the evening, defendant came over after Dr. George, and, not finding him at home, told her (Mrs. George) to tell Dr. George to come over and see the baby as soon as he came; and defendant said, further, that, while the baby seemed to be better, she (defendant) did not like the looks of the baby's eyes. That, while defendant and witness were talking, some one came in, and, acting upon information received, witness stepped out of her back door, and heard Sallie Raney, in front of defendant's house, screaming. That witness went with defendant, and, when they arrived at the house, the baby was dead. That, before they got there, they saw and heard Sallie Raney run out of the house and exclaim: `My poor baby is dead!' That, when they got there, she (witness) and some other ladies who had come in took the baby's clothing off, and rubbed it. That they found that it had turned a blue or purple color. That, after rubbing awhile, the natural color came back. That one of the ladies opened the baby's mouth, and `We smelled turpentine.' To which ruling of the court defendant then and there excepted. Be it further remembered that the State offered to prove by Mrs. Hunton circumstances connected with the death of said baby, and defendant then and there objected. The court overruled defendant's objections, and permitted the State to prove by said witness that she was at defendant's house on the morning of the death of Sallie Raney's baby; that she, in company with Mrs. George, examined the dead body of said baby, and found it to be blue or purple, and that they rubbed it and worked with it for a considerable length of time, trying to restore life, and its natural color came back; that she took deceased (Sallie Raney) out on the gallery for the purpose of having a conversation with her; that while they were out on the gallery, during a period of about two minutes, Mrs. Hamblin appeared near or passed by them twice; that she could not understand why defendant came about them, but she noticed that, while defendant was near by, deceased would not talk; and that she did not get to talk to deceased on the subject she wanted to, — to which ruling of the court the defendant then and there excepted. Be if further remembered that Dr. George was recalled by the State, and testified, over defendant's objection, that, in his opinion as a physician, several things might have caused the condition the baby's body was said to have been found in (that is, blue or purple); that it might and could have been caused by the air being cut off from the blood, either by choking, or putting something over its head, and smothering it; that it could have been caused by a failure of the heart to act, or any other means that would cut off *Page 144 the air from the blood, — to which ruling of the court defendant then and there excepted. To all of which testimony defendant, at the time it was offered, then and there objected, because of its irrelevancy and immateriality; and, the court having overruled defendant's objections, the defendant then and there, in open court, excepted to the ruling of the court, and here now tenders her bill of exceptions," etc. I understand the opinion of the court to dispose of this question on two grounds: First, that the bill is not sufficient to raise the question; and secondly, conceding the sufficiency of the bill, that the testimony was admissible to show motive. And in this connection the statement of facts is appealed to to show the connection of appellant with the death of Sallie Raney's baby. I will treat these questions in their order.
The majority opinion insists that the word "relevant" is too general, and in this bill is without meaning. I quote from the opinion as follows: "An inspection of this bill discloses that the only ground of objection urged to this testimony is because the testimony is immaterial and irrelevant. We have repeatedly held that the bill of exceptions must disclose some reason why the testimony is inadmissible, and the mere allegation that the testimony is immaterial and irrelevant is not sufficient," — citing Wade v. State, 37 Texas Criminal Reports, 401, and McGrath v. State, 35 Texas Criminal Reports, 422 (the opinion in the latter case being by the writer). In the latter case I note the language used was that the statement "that the testimony was irrelevant and immaterial is entirely too general." The testimony, however, appears to have been admissible, and is so treated. In the former case the same language was used, but the testimony in that case was relevant. No doubt a number of decisions can be found in which the general language, to wit, that objection to testimony that it was irrelevant, or not relevant, is stated to be too general; but I do not recall any discussion of this particular question in any case where the decision was made to turn upon the meaning of the word as applied to the evidence, though there may be such, but they have escaped my observation. Nor am I saying that there might not be cases in which the term "relevant" might be too general, and there are certainly cases in which the term "irrelevant" would not point out the objection. In the general dictionaries the word "relevant" means "to the purpose," "pertinent," "applicable," etc. In law it is defined as being any subject matter, germane to the controversy, conducive to the proof or disproof of a fact in issue or a pertinent hypothesis. "Irrelevant," the converse of this, is "having no legitimate bearing on the real question." See Cent. Dict. and Rap. L. Law Dict. According to Stephens' Digest of Evidence, article 1, the word "relevant" means that any two facts to which it is applied are so related to each other that according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or *Page 145 nonexistence of the other. "The meaning of the word `relevant,' as applied to testimony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it." Platner v. Platner,78 N.Y. 90. "Although, as a rule, testimony should not be excluded as irrelevant on the ground that it may have but little weight, yet the law requires an open and visible connection between the proof and evidentiary facts and the deduction from them, and does not permit a decision to be made on remote inferences. The relevancy of evidence may be established after its admission, and evidence irrelevant when admitted may be made relevant by evidence subsequently introduced." 11 Am. and Eng. Enc. of Law, 2 ed., p. 501, and authorities there cited. Now, testing the question by the rule laid down as above, as to whether the objection presented in the bill, that said testimony concerning the death of Sallie Raney's baby was "irrelevant," let us see how the matter stands. The State offered to prove by certain witnesses certain circumstances connected with the death of Sallie Raney's baby. Of course, said testimony was admissible, under certain circumstances, to show that the death of said baby furnished a motive suggesting that appellant killed said Sallie Raney. But, in order that this be true, there should appear some logical, visible connection between the two killings; otherwise, the former homicide is not evidence in the latter, — that is, it is not relevant. As I understand it, the bill of exceptions sets out the testimony of the witnesses in regard to the death of Sallie Raney's baby, with the environments and conditions claimed by the State to render it admissible. As presented, appellant resisted the introduction of the testimony on the ground of its irrelevancy; that is, the bill fails to show any logical or visible connection between the killing of Sallie Raney and the death of her baby. Looking at this bill, we fail to see that the testimony admitted shows that the baby came to its death by any criminal means or agency, much less by the criminal means or agency of appellant. Grouping the evidence presented, it shows that the baby was sick, evidently at the house of appellant (with whom Sallie Raney and her baby resided); that the doctor was called in to see the baby about 5 o'clock in the evening, did not consider it seriously sick, but left four powders to be given it; that he was sent for the next morning, about 10:30, and went over to appellant's house, and found the baby there dead. Mrs. George, wife of the doctor, came over to see the baby shortly before its death, but stated that she did not like the looks of the baby's eyes. She stepped out of the back door, and directly heard the mother scream that her baby was dead. They found the baby had turned blue or purple in color, and, after rubbing it awhile, the natural color came back; that one of the ladies opened the baby's mouth, and they smelled turpentine. The doctor testified that, in his opinion, several things might have caused the condition of the baby's body; that is, *Page 146 the blue or purple color. It could have been caused by the air being cut off from the blood, either by choking it, or putting something over its head, and smothering it, or it could have been caused by failure of the heart to act, or any other means that would cut off the air from the blood. In this connection, Mrs. Hunton testified that, while they were out on the gallery, shortly after the baby died, talking to the mother, Mrs. Raney, appellant came about them, and she noticed that, while defendant was near deceased, Sallie Raney would not talk. This is all the evidence that it could be claimed tends in the remotest degree to show the death of Sallie Raney's baby by violence; and I submit that it is not sufficient testimony pertinently tending to show the death of said baby by violence, much less by violence committed by appellant, to go to a jury as legal testimony for the purpose of furnishing a motive against appellant for the subsequent homicide of Sallie Raney, which homicide depended wholly on circumstantial evidence. There is not only an utter failure in the bill to show the death of said baby by violence, but there is absolutely no showing that it was by violence committed by appellant; and, more than this, there is nothing to suggest that Sallie Raney, the mother, suspected defendant of being connected with the death of her baby, much less that she accused her of it. The feeble suggestion that Sallie Raney, while standing on the gallery with other persons, shortly after the death of her baby, stopped talking when appellant came near, I do not think is worthy of notice in this connection.
Now, I ask, if the objection that said testimony was not admissible because it was not relevant, or because it was irrelevant, was not sufficient, what objection should have been made to the admissibility of this testimony? The death of Sallie Raney's baby was only relevant as proof of motive. As we have seen above, this evidence could only prove motive if the baby's death was occasioned by the criminal agency of appellant, and she knew that deceased, Sallie Raney, knew of such agency, or suspected her with the death of her baby. These were essential facts to render said testimony admissible. They were affirmative facts, not shown in the bill. But the bill as presented showed clearly that said testimony was irrelevant, and in my opinion this was the only objection that could have been urged to the admission of said testimony. It was clearly irrelevant, because concerning another possible homicide; and, before proof of such other homicide could be made in this case, it was incumbent on the State to show the facts which made such other homicide relevant testimony in the case then being tried. Cheatham v. Riddle, 8 Tex. 162; Stiles v. Giddens, 21 Tex. 784 [21 Tex. 784]. A majority of the court insist that these circumstances as detailed, "although remote, indicate, as claimed by the district attorney, the probable motive that appellant had in killing deceased," and then say: "Suppose there was positive proof that appellant had killed deceased's baby; it would certainly *Page 147 not then be seriously contended that the fact could not be used in order to show motive for killing deceased, in order to destroy the witness to her crime. Then, clearly, any circumstance that would go to show that appellant killed the child would have been admissible." I can not regard this as sound doctrine. On the contrary, I insist that, before proof of another homicide can be made, there must be pertinent testimony tending to connect the appellant on trial with some criminal agency in the perpetration of the former murder. Mr. Wharton lays down the correct rule on this subject. See Whart. Crim. Ev., secs. 37, 38; and, also, see the question discussed in Williams v. State, 38 Tex. Crim. 128. But it appears to be contended that we can appeal to the statement of facts, and supplement or supply the defects in the bill; and it is said in the opinion "that appellant, on her cross-examination, admits that she knew she had been accused of killing Sallie Raney's baby, and protested her innocence to the deceased." I quote from the testimony adduced on the cross-examination of said witness, as follows: "No, Mr. Kinnard; I did not kill Sallie's baby by smothering it with a pillow. Pretty soon after its death I heard that I was accused with killing the baby, and Sallie told me what those ladies said about it, and I told her I did not kill her baby, and I would not have done such a thing." This is all in the record that even suggests the subject matter of the death of the baby having come up between Sallie Raney and appellant; and I submit that this does not convey the idea that defendant was apprehensive that Sallie Raney suspected her with the death of her baby, much less that she feared a prosecution on said account, and that Sallie Raney would be a witness against her. There is other testimony in the record showing the friendly relationship between these parties; and the continuance of Sallie Raney to reside with appellant after the death of her babe would suggest that there could be no fear on the part of appellant of Sallie Raney in regard to the death of said baby. But, as a sufficient answer to this proposition, I do not believe we are authorized to go outside of the bill of exceptions itself. This was a case of circumstantial evidence, and every circumstance adduced against defendant on trial has more or less weight, and it is impossible to tell how much weight the testimony in regard to the death of Sallie Raney's baby, attributed, as it was, to the criminal agency of appellant, may have had with the jury. This is a dangerous character of testimony introduced against appellant; and the reasons for its introduction, I think, should be clearly manifest before it is admitted. It occurs to me that the case should be reversed on account of the improper admission of said testimony. Admitting that appellant is very guilty, yet she is entitled to a fair and impartial trial, and no exigency in the administration of the law should deprive her of this. It is not to be presumed that the jury will fail to discharge their duty on another trial, or that the reversal of this case is necessarily an acquittal on a subsequent trial. *Page 148 But, however that may be, for the reasons advanced I can not concur in the disposition of the case as made by a majority of the court.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]