The offense is murder. The punishment is assessed at death.
The record shows that appellant lived on a farm belonging to the deceased, but was going to move to the Bouldin place. On the day in question, the deceased (who was a constable) had made a complaint against appellant for whipping his concubine. He had obtained a warrant for the arrest of the appellant and went to his home for the purpose of executing it. When the deceased (who was accompanied by his son) arrived at the appellant's home, he found him sitting on the front porch with a shotgun in his hand and a pistol lying nearby. Deceased asked appellant what he had decided to do, whereupon appellant remarked: "Keep off of my place you big white s__ of a b___." Thereupon, the deceased started to get out of his car, and when he did so, appellant shot him in the left hand and wrist with a shotgun. The deceased then shot at appellant who immediately fired the second barrel of the shotgun at him. The deceased then ran out into the field or pasture with the appellant in hot pursuit. The son of the deceased followed appellant and begged him not to shoot his father any more. The deceased ran until he was exhausted and then laid down in the weeds. The son, seeing that his father was badly wounded, returned to their automobile for the purpose of getting some assistance in taking his father to the hospital. While the son had gone to summon aid, the appellant shot the deceased in the head and neck with a pistol; that when aid finally arrived the deceased was dead. Appellant had made his escape but was apprehended within a short time. *Page 525
There is but one question presented for review which complains of the following testimony given by the wife of the deceased, to-wit:
"That morning when that woman came up to my house she was crying. She had a tooth loose and told me she had been choked, and had four cuts across here. I saw her condition, and I gave her some liniment that she could use for any purpose. Seeing the condition she was in I knew she was not able to wash that day, and I told her not to wash when I left my home that morning."
Appellant objected to this testimony on the ground that the same was irrelevant, immaterial, incompetent, and had no bearing on any issue in the case; that it was prejudicial and calculated to inflame the minds of the jurors against him.
If this was the only testimony relating to the matter, it might show error. However, there is testimony from other sources in the record showing that they had heard about appellant beating up the woman who lived with him. Appellant admitted on the witness stand that one of the complaints pending against him in the Justice Court was for whipping his wife, or rather the woman who was living with him. Glen Bouldin, testifying for the defendant, stated upon cross-examination by the State, as follows:
"I have heard about Henry beating his wife; it wasn't his wife but the woman he was living with. I do not know how many times he beat her, but several times."
Terry Bouldin also testified that he had heard about appellant beating the woman he lived with.
No objection was interposed to this testimony. Thus, it will be noted that testimony similar to, or of like character, as that objected to, was introduced without any objection. Consequently, the testimony objected to could not have been more hurtful than that which was introduced without objection. See Sparkman v. State, 82 S.W.2d 972; Enix v. State,112 Tex. Crim. 376; Bird v. State, 147 S.W.2d 500; Shepherd v. State, 171 S.W.2d 120; Bussell v. State, 148 S.W.2d 413; Davis v. State, 161 S.W.2d 78; Daugherty v. State, 176 S.W.2d 571.
Finding no reversible error in the record, the judgment of the trial court is affirmed. *Page 526
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON APPELLANT'S MOTION FOR REHEARING.