In a motion for rehearing it is contended in behalf of the State that the error in receiving the testimony of Mrs. Gee to the effect that the wife of the appellant declared that she was not the cause of the appellant killing deceased and that she thought Loys was just joking about the deceased, was harmless. That is to say, it could have exerted no influence upon the jury. Of course, if, from the record, it is manifest that the testimony mentioned could not and did not injure the appellant, its *Page 517 reception in evidence would not justify a reversal Of the judgment. The court instructed the jury in substance that if they should determine that in killing the deceased the appellant was actuated by malice aforethought, he should be convicted of murder and his penalty assessed at death or confinement in the penitentiary for any term of years not less than two. The jury was likewise instructed that unless they believed that in killing the deceased the appellant acted upon malice aforethought and should convict him, that he would be found guilty of murder but the penalty assessed could not exceed confinement in the penitentiary for five years. This charge was in accord with the statute which fixes the penalty for murder without malice at confinement in the penitentiary for a period of not less than two nor more than five years. In deciding whether the appellant acted upon malice or without malice in killing the deceased, the evidence in question was important. It bore directly upon the cause of the killing. The issue of malice was affected by whether the deceased was killed by reason of his undue relations with the wife of the appellant. On the trial she testified in favor of the accused upon that issue. According to the testimony of Mrs. Gee, the wife of the appellant, immediately after the killing, declared that she was not the cause of the killing. This remark was made soon after the appellant had visited his wife to whom he went immediately after he killed the deceased. The surrounding circumstances are such as might have impelled the jury to regard the declaration of the appellant's wife to Mrs. Gee as her interpretation of the conversation with her husband, who at the moment had gone to surrender to the sheriff. Whether the testimony was appropriated by the jury against the appellant, this court cannot determine. That it might have been so appropriated seems obvious. There is no absolute means by which the court can determine its effect upon the jury. The penalty assessed against the appellant, as it was stated in the court's charge, was more than the minimum for murder with malice and more than the minimum for murder without malice. The appellant's request for a suspended sentence was denied by the jury. That the testimony was improper is not deemed debatable. That there was error in receiving it is demonstrated by the original opinion. The error being manifest and its effect uncertain, we feel constrained to resolve the doubt as to the consequences of the error in favor of the accused.
The motion is overruled.
Overruled.
HAWKINS, J., absent. *Page 518