The facts are set forth with accuracy and discussed in detail in the original opinion. The disposition of the contention of the appellant that there was error in the reception of evidence to the effect that there was a shell from a shotgun found upon the porch of the appellant's dwelling after his arrest and the use of the evidence pertaining to it upon the trial is vigorously attacked in the motion for rehearing. Our view of the subject, as reflected in the original opinion, was that although the shell which was found upon the appellant's porch may have been improperly received in evidence, the error committed was harmless. In making that announcement we, for the moment, lost sight of the fact that the evidence of the appellant's guilt was wholly circumstantial. Reviewing the subject, it may be stated that there appears in the record no legal basis for the search of the appellant's dwelling without a search warrant. The arrest of the appellant was not justified by any of the provisions authorizing an arrest without a warrant, such as are set forth in title 5, C. C. P., 1925. The testimony of the officer who arrested the appellant revealing the conditions that came to his knowledge while in the presence of the appellant and in his dwelling, though obtained by an unauthorized arrest, was not available to the accused as ground for a reversal of the judgment for the reason that the officer's declaration touching the matters just mentioned was verified by the testimony of the appellant while testifying in his own behalf. The appellant gave no testimony showing the presence of the shotgun shell which, according to the arresting officer, was picked up on the porch of the appellant's dwelling. The officer disclaimed the acquisition of any knowledge of the presence of the shotgun shell mentioned at the time of the appellant's arrest. Touching the presence of the shotgun shell mentioned upon the porch of the appellant's dwelling, the officer's knowledge, according to his testimony, *Page 111 was acquired after he had taken the appellant away from his dwelling and placed him in jail. After having arrested the appellant and departed from his dwelling, the legality of the officer's action in returning to the dwelling and making the additional search which resulted in the finding of the shotgun shell, is deemed to have been without support in the law. This is true, first, for the reason that, as above stated, the action of the arresting officer was illegal; and second, for the reason that having completed the search, the return of the officer and the re-entry of the dwelling were violative of the provisions of the Constitution and the statute against unreasonable searches and seizures. See Stokes v. State,117 Tex. Crim. 307, 35 S.W.2d 727, and cases therein cited; also Davis v. State, 113 Tex.Crim. Rep., 21 S.W.2d 509.
The introduction in evidence of the officer's testimony showing the result of the subsequent search, namely, the finding of the cartridge upon the porch of the appellant's dwelling, was opposed by article 727a, C. C. P., of this state. Upon this review, it becomes necessary, therefore, to deal with the appellant's complaint of the reception of the evidence of the finding of the shell and the use made thereof upon the trial in the light of the fact that the evidence against the appellant was wholly circumstantial. The presence of the shell upon the appellant's porch is vouched for by the testimony of no witness save Howerton, the officer who made the arrest. Excluding his testimony, there was before the jury no evidence of the presence of the shell. Based upon Howerton's evidence, however, the shell was used as a basis for experiment and for opinion testimony against the appellant, as indicated in the original opinion.
In the motion for rehearing attention is drawn to the fact that at the filling station two shots were fired: One entering the body of deceased, the other being embedded in the door of the filling station.
From the appellant's supplemental argument on motion for rehearing, the following quotation is taken: "An empty shotgun shell was found near the body of the deceased. Certain witnesses testified to having heard two shots fired. Other testimony showed that a charge of shot went into the filling station conducted by the deceased, and that another charge of shot from a shotgun went into the body of the deceased and resulted in his death. The state could account for one of the shotgun shells. That one was found near the body of the deceased. There was testimony to show that at about the time of the homicide certain persons were at the deceased's filling station *Page 112 with an automobile, and that there was a double-barreled shotgun in this car. This circumstance was sufficient to lead some minds to believe that the deceased met his death at the hands of these parties and not the appellant. In the prosecution's attempt to draw its chain of circumstances about the appellant and to exclude every reasonable hypothesis except his guilt, it became important to show what had become of the second shotgun shell that had been fired. This circumstance in the chain of evidence was supplied by the finding of the empty shotgun shell on the north porch of the appellant's home with a mark made on the cap by the plunger or firing pin corresponding to the mark made on the cap by the plunger or firing pin of the gun that had been used to fire the shell found near the deceased's body. Thus the prosecution was given a basis of fact upon which it could argue that the appellant fired the first shot at the deceased and missed, the charge of shot entering the filling station; that he fired the second shot into the body of the deceased, which resulted in his death, and that he did not reload his gun (it being a single-barrel shotgun) until he reached his home; that the reloading took place on the north porch of the appellant's home, and that he left the shell which was fired in the second shot on the north porch of his home, where it was found by the witness Howerton. That the finding of this shell and the similarity of the marks on it to those found on the shell found near the body of the deceased was not damaging to the appellant, and that it did not form an important link in the prosecution's chain of circumstances, will not be contended by any who are familiar with the trial of homicide cases before juries. The meaning and effect of the testimony regarding the finding of this shell on the porch of the appellant's home, and the similarity of the marks on it with those on the shell found near the body of the deceased, upon the appellant's case was evidently adverse to the appellant, and how great an influence it had upon the jury in arriving at its verdict is impossible of statement. It was a cogent, material, incriminating fact that helped produce in the minds of the jury a reasonable and moral certainty that the appellant, and no other person, committed the offense charged against him."
Being convinced that in receiving the testimony touching the shell discussed hereinabove and the treatment thereof revealed by the record, as pointed out in this opinion, there was committed error prejudicial to the accused and calculated to impair his right to a fair and legal trial, the motion for rehearing *Page 113 is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.