Appellant was prosecuted, charged with the murder of his wife, convicted of murder in the first degree, and his punishment assessed at imprisonment for life.
The offense was alleged to have been committed in Brown County, but was tried in Runnels County on a change of venue.
Appellant had been married prior to his marriage to Mrs. Sallie Brown, the woman whom he is alleged to have killed, and had a number of children by his first wife. Mrs. Sallie Brown had also been married prior to her marriage to appellant, and also had children by her former husband. Appellant and his wife were married January 4, 1910. Appellant and his wife were living on a farm about six and a half miles from Brownwood, when in November, 1910, she left the farm and moved to Brownwood, remaining there until March, 1911, when she returned to the farm, the homicide occurring at the farm on September 9, 1911. All the children had gone to town to a show except the three little ones, who will hereafter be referred to. About ten o'clock that night Mr. Ivy Beeman says appellant called him over the telephone, and said, "Mr. Beeman, I wish you would come down here quick, a burglar has knocked me and my wife in the head and tried to kill us both." The witness says he replied all right, and began to dress, but before he got ready to go appellant called him again and said, "I wish you would come quick, my wife is hurt bad and I am afraid she will die before you get here; there is blood all over everything and I wish you would come quick." He then details in what condition he found Mrs. Brown, the defendant's statements at the time, etc., but as we will quote extensively from the statement of Dr. Tottenham, the family physician of Mr. Brown, who states the matter more succinctly, we will not recite Mr. Beeman's testimony. Dr. Tottenham testified he was called that night and went immediately, and then testifies:
"I came in and spoke to Mr. Brown and Mr. Beeman and said, `Good evening,' or something of that kind, and Mr. Brown made an exclamation, `My God,' or something of that kind, `Isn't this awful?' I think I said `Good evening' to him, and he says, `My God, isn't this horrible or awful?' or something to that effect, and I says, `It certainly is, how did it happen?' and he proceeded to tell me then; he told me that he had been taking some medicine and had been up with his bowels once or twice, and wasn't sleeping sound, and that he was lying on the inside of the bed and his wife was on the outside, and he said he wasn't sleeping sound, just kinder dozing, and indicated to me how he was lying on his right side facing his wife, and had his eyes shut, and he said *Page 360 he heard something tip up on the gallery and `I thought it was a dog,' and he says, `Then I heard the lick,' and says, `I opened my eyes and looked up and I saw a man drawn back,' and he indicated to me then with his arm; he was standing up at that time; he was standing between the bed and the wall near the head of the bed, and said he was lying on his right side facing his wife, and he says, `I heard some one tip up on the gallery and I thought it was a dog, and then I heard the lick,' and he says, `I opened my eyes and looked up'; when he was telling me this I was standing at the head of the bed, and he was in this position; he was talking and standing about like you are now, and I was standing at the head of the bed, and he was between the bed and the wall; he said, `I heard something come up on the porch,' and he was looking this way when he made this statement and says, `I thought it was a dog'; he was looking towards this southeast step, the same step I entered from; he didn't do anything else with reference to indicating that step except looking that way and facing that way when he was talking; he said he thought it was a dog, and then he heard the lick, and he wasn't sleeping sound, he was dozing, and says, `I looked up' and he indicated on his arm a distance of about eighteen or twenty inches something that he said the man had raised up; he was still standing near the head of the bed near this window, and he says he looked up and saw him drawing back to hit him, and says, `I ducked, and as I ducked I felt the wind as it passed my head,' and he turned then and pointed to the wall opposite the bed to the right of me and says, `See there,' and pointed to the wall right along here; he was standing close to this window, right about here; he turned around and pointed to the wall and says, `See there where he like to have killed me or tried to kill me, that is where he hit the wall'; I saw the indentation on the wall then, and I still stood at the head of the bed; I says, `What did you do then, Mr. Brown?' he says, `I jumped up and ran between the bed and the wall into this room, the north room, to get my gun,' and as he ran, he says, he used an oath and said that he would kill him, or something to that effect, he says, `You son-of-a-bitch, I will kill you,' and started after his gun; he said as he entered this door he was afraid the man would follow him and he closed this door, and as he looked over his shoulder his pants was on this chair at the foot of the bed with four dollars and something in his pants, and a Woodman receipt and a five-dollar pearl handled pocketknife, and says, `He grabbed my pants and run,' and says, `You will find the pants somewhere where he throwed them down, he won't carry them far'; I says, `What did you do then?' he says, `I got my gun from the closet as quick as I could and the shells from over the closet and came back out here'; I says, `Did you see the man?' he says, `No'; I says, `Did you run after him?' he says, `No, I went to my wife'; I says, `What was your wife doing then?' he says, `She was sitting on the edge of the bed'; I says, `Did she holler?' he says, `No, she said her head hurt her'; I changed my position then to this side of the bed, and he was still standing in his same position over by this window of the middle room, near the edge of the bed; I went around then between *Page 361 the edge of the bed and the gallery and I noticed that there was water on the floor; I says, `What caused this water, how is this water here,' and he says, `She vomited and I washed it up'; he didn't say what she vomited; he says, `I found the iron that he hit her with,' and he pointed down to the gallery post, right opposite here and just back of the gallery post on the ground, and there was a bar of bridge iron laying there; he says, `It is a piece of railroad iron, a piece of bridge iron'; I looked down through the vines there and I saw this piece of iron laying in the front yard in front of the gallery; I didn't disturb the body at all, I saw that nothing could be done for her; didn't think she would live more than an hour or two; I told him to start a fire and get some hot water and he went off to start the fire, and he brought me some cold water, and then he went off to start the fire and get some hot water, and in the meantime I believe the officer had come; I made an examination of that iron when he handed it to me; I think I saw that iron after Mr. Daniels came; I didn't bother anything until Mr. Daniels came; when I got there I found the deceased lying on the outer edge of the bed, lying upon a pillow; she was lying on the east side of the bed and her head was lying a little to the outer edge of the pillow and her face turned a little towards the wall, and she was lying on her back; she was dead to all appearances and you couldn't see any respiration at all, you couldn't see her breathing at all; her pulse was scarcely perceptible and you couldn't hardly feel it it was so weak; after the officer came I examined her head, and there was a mass of brain just beat into a jelly protruding over the right eye, just sticking right down here, and I removed that protruding mass of brain and some fragments of skull that was easily gotten to; I didn't go deep into this fracture, this large opening here, and I placed the skin flaps over this opening and put on aseptic dressing, and then examined the other side, and over the left eye; about an inch or an inch and a half from the wound over the right eye was a horizontal fracture an inch or an inch and a quarter long that could be plainly felt and seen through the skull; you could see the fracture plain over the left eye; by fracture I mean that the skull was broken; that fracture over the left eye was about an inch or an inch and a quarter in length; over the right eye I found that there was a fracture about an inch and a half or two inches square, and the process over the right eye was broken in; that was the supraorbital process; that supraorbital process runs backward under the brain and between the eye and the brain and the optic nerve; I suppose that runs back an inch and a half; that supraorbital process is composed of bone, but it is not very thick there; right in front of that supraorbital process is the thick portion of the skull; the nasal bone was broken in but I made no examination further than that; I didn't make any further examination at that time because I didn't think it was necessary, I didn't think anything could he done for her, and I knew that it wasn't necessary at that time; I then cleansed her off as well as I could and put on a clean gown and carried her into this south room and placed her on a bed; I stayed there until about eleven or eleven-thirty on *Page 362 Sunday morning; I heard the defendant say something as to the number of licks that party struck his wife; he says, `I heard the lick,' and he made that statement more than once; I took the iron rod that he showed me and put it into this opening over the left eye; I then said, `These wounds couldn't have been produced by one lick,' and he said, `There might have been more than one lick'; I made a comparison or test with that iron; I found a downward glancing stroke on the wall; that wall was made of pine plank painted white, weather boarding; I went around and looked at it and I saw that this instrument had produced that, had hit the wall there; it looked like there had been more than one lick on the wall; I saw that the wall had been indented in one or two places and that there was blood splashes below the indentation, running down that way, south; I know that I found as many as two indentations there; the defendant motioned that the party was standing opposite Mrs. Brown's pillow and about a foot and a half below the pillow when he struck the wall, about a foot or a foot and a half from the head of the bed, towards the foot; that was between the bed and the outer edge of the gallery, and he struck across the bed at him over here; I made a test to see whether that could be done; the bed had not been moved at that time.
"I think I saw the defendant that night stand on this spot and show the officer where this supposed burglar stood; the defendant had not been arrested at that time; the officer said he wanted to get right on the scene there as soon as he could, and the defendant proceeded to show him; at that time I stood at that spot where he indicated to the officer the supposed burglar stood and made the test; I stood at the head of the bed where he stood and tried to reach across the bed to the wall with this bar of iron; I stood just about here and tried to reach across; I stood about a foot or a foot and a half from the head of the bed, north, down the side of the bed, and tried to reach across the bed and strike the wall here; I was standing on the east side of the bed, and I tried to strike where this indentation was on the west side of the porch, and I couldn't reach it, I would fall short; I didn't measure the distance from the indentation on the wall to the place where the defendant said the supposed burglar stood.
"After the defendant told me he came back out on the porch with his gun, he said that he got some water and bathed her face and put a wet cloth over her head, and there was a wet cloth over the wound when I got there; he told me further that the burglar stole his pants and this money and that we would find the pants whichever way the burglar went, that he would throw them down; he told me that he had a five-dollar pearl handled knife in those pants; he told me where he got that knife, but I don't remember now what he told me about that; he said he had some four dollars in silver and a Woodman receipt in his pants; he first said he saw the man steal his pants here and run, and then later he says, `He run south through the cane patch'; that was in response to the questions of the officer, Hard Daniels; he also told me *Page 363 that he had telephoned to me, and I asked him if he had called the officers, and he said `No.'
"When I got there that night, down on the east side of the bed in front of the pillow, towards the foot of the bed, I found fragments of skull and brain tissue and lots of blood, hemorrhage; that blood was on the bedding, and some between the bed railing and the mattress; I picked up all of these fragments of bone and put them on a table — there was a table sitting in here, and I afterwards picked up a number of fragments of skull on the ground in front of the gallery; there was also blood and brain tissue on the ground near the edge of the gallery; I found something like two tablespoonfuls of brain tissue there; I found that bed to be very bloody; the most of that blood was in the center of the bed on the east side; at that point the bed was very bloody, and there was brain tissue brushed against the bed and fragments of skull there; the pillow that she was lying on wasn't very bloody, the most of it was water; there was not a very large quantity of blood and water on the pillow, but most of it looked like water; if I remember right, the outer half of that pillow was covered with that; those pieces of bone that I found on the bed and on the ground were fragments of the frontal bone of the skull; they were fresh bones; they came from the frontal region, which region is over both eyes; this bone that I found was from over the right eye; the main wound was over the right eye; all of the skull was gone in the wound over her right eye for about an inch and a half or two inches square; I made my first examination of that wound by the light of an ordinary kerosene lamp, which made a poor light; I think after I moved her into the room I gave her some hypodermic stimulants for her heart; I didn't make a careful examination of her body, I made a hurried examination of her body because I wanted to get her moved from this bed; I never stripped her and made a close examination of her body after I took her in the room; I stayed with her until about eleven o'clock Sunday, and then I went to Brownwood, and came back about one-thirty or two o'clock. I think she died about eight or nine o'clock Sunday morning, but I wasn't present when she died. I have license to practice medicine, and have been in the practice twelve years; I am a graduate of Tulane University at New Orleans; I have been in the general practice part of the time and in hospitals part of the time; I have enough understanding of the brain and the head and the wounds to give an opinion as to whether or not it would have been possible for that woman to have sat up in the bed and talked after receiving those wounds; in my opinion she could not have spoken. I made an examination of her skull to find out how many distinct wounds I could find on it; I found two large wounds, and I found the skin over this one was cut in a number of places and was ragged, and a horizontal wound over the left eye; her nasal bone was fractured, and you could see from the bulging out here that it was broken."
Dr. McCarver testified he was county physician of Brown County, and after Mrs. Brown's death he testified he made an examination of the body. He says: "I removed the sheet over her head and observed *Page 364 the large wound over her right eye with my finger. I found that the bone was removed. I found no resistance on the part of the bone from the middle of the nose two inches to the left and a little over two inches above; I found that the bone was removed and on pressure I only felt a soft mass; that large wound was over her right eye; I found that from the center here above the nose two inches to the right in this direction the bone was missing; if I said the left before I meant the right; I found that the bone in this direction a little over two inches had been removed, or at least there was no resistance from the bone there; I found a flap of skin extending from the external angular process some inch and a half, and then a small flap of skin from that; this tag of skin was a perfect flap and that was lying on the mass below, lying on brain clots and so forth; I found a wound about the left eye one-half inch above the eyebrow, one and five-eighths inches long extending at an angle of about fifteen degrees with the body, almost parallel, and then after pulling the skin back, I saw that the periosteum or the thick covering that goes immediately over the bones, was cut at an angle of fifteen degrees, and I noticed a notch in that periosteum; the skin there was rather ragged, and I took my finger and went in here where I found no resistance on my right, and I found that that skull was fractured and depressed over the left eve; that fracture was something over two inches; I know it was fractured as far as I felt back, and I possibly run my finger back two inches or more. This is a human skull; I took this skull with me when I went to hold the autopsy; an autopsy is an examination of the body after death to see the extent of the injury; this is the wound that I spoke about over the left eye; this is the one in the skin; that is a smaller skull than the skull of the deceased; two inches here from the middle like will carry you almost outside of the skull; I bought this for a woman's skull, but it is not so wide as that of the deceased; two inches here from the center of this line will carry you outside of the skull, and it was actually two inches, for I measured it; now this other skull here comes nearer being the size of the skull of the deceased and vet it is not as wide as hers was; I found that the bone was removed inside of this black line here, this bone was all removed, and from there down to here, all that bone was pressed back and had been knocked back into the brain, just perfectly loose; this part of the bone up here is what we know as the frontal bone; the supraorbital plate is here above the eye, a part of the frontal bone; that is above both eyes; I found that the main part of the frontal bone here was not present and had been removed over the right eye, and extending one-third of the way of the left eve; I pulled pieces of the supraorbital plate the length of my finger back in that brain, with my left index finger and my thumb; there being no bone here on the right side, I ran my finger in here to find if this wound over the left eve had fractured the skull; I found a depressed fracture over the left eye, and found that the bone was rough and had been fractured, and the mesial part on towards the center of the brain had been depressed; I found a wound across the nose an inch and a half long, almost in a horizontal direction across the nose; *Page 365 I also found a cut here immediately over the nose in the skin; this part here that I marked out where the bone was gone, the skin overlapped that and it was ragged, and this skin flap here had the same appearance; I took hold of the sphenoid bone here; this is the nasal bone here, and this of course running back in there to that point is the frontal bone; I found this whole thing pressed back, and that sphenoid bone behind the supraorbital plate of the front of the bone had also been broken off and knocked back; in my examination I found part of the supraorbital plate and pulled it out; I also found a cut across the nose an inch and a half long, and also one immediately across the nose, and one over the left eye and this large wound; I have had quite a number of cases of Injury to the head, but not so extensive as this injury; as I stated before, I found that the part of the skull indicated here in the large wound was not there, and had been removed; that space that was gone covered a space of about three inches by two and a half; I put my finger in here above the right eye, and also put my finger in here; on the right side I found no resistance in the frontal lobe; I ran my finger back on the right side as far as the temporal sphenoidal a distance of about two and three-quarter inches; I then ran my finger towards the left to the bone on the opposite side, the edge of the frontal and temporal bone, right about here; I felt some resistance of course in there directly below that, going under the bone at that point; over the right eye I found that the bone had been broken loose and was ragged, and I also found that the skin was ragged; measuring the wound here, I found that something near six inches around the skin, and that is not quite going around three sides of the edges of the skin; after I had made an examination of the wound I made an incision here and pulled the skin back all around the wound so I could examine the bone and the brain, and I found a large projecting mass of blood mixed with brain and clot and so forth, which I removed; I found the clot and brain on the right side involved almost to the frontal lobe, and on the left side I would say at least half way back the frontal lobe, and the right half or right one-third at least of the frontal lobe, on the left side was entirely macerated; the frontal lobe extends back one and three-quarters inches; the temporal sphenoidal lobe is back of the frontal lobe below, and the parietal back of the frontal above; if I touched the parietal lobe it was only at the lower part and possibly in the neighborhood of the fissure of Sylvius; if I had taken a cord and laid it around the edges of this large wound it would have amounted to about five inches; I found the edges of that wound ragged and torn to the full extent almost; I don't remember how many torn places there were there, I didn't count them; then the skin had a similar appearance that extended across from the right to the left, almost across this wound; of course, it didn't extend exactly across, there was a little space in here where there was no skin; that had ragged edges, and also the space here and the space above and the space below that the skin didn't cover; that flap of skin was ragged the same as it was around the edge of the skin wound; I found a small skin flap cut off from that large skin flap; but I don't remember just the direction, and *Page 366 I don't think I have got that in my notes that I have got with me; that was just a small tag of skin extending from this large skin flap; that small tag of skin was possibly a third or a half inch long; the skull at that place is very well braced on account of the extension and supraorbital plate; that portion of the skull is better braced than the sides of the skull, and really as well as the back — it is not as heavy as the back but it is as well braced on account of the supraorbital and nasal and sphenoid and temporal bones; I disrobed the body of the deceased and found seven distinct bruises; on the right arm one inch above this prominence here known as the ulna. I found a bruise a little larger than a quarter; that was a blue or black wound; I found another bruise four inches above the elbow on the right arm, a black place possibly as large as a half dollar; four inches below this notch of the breast bone I found another bruise; that was a convex and curve, with the convexity up; then two inches and a half to the right of that, near the nipple, I found another bruise the size of a quarter; that was near the right nipple; above and below the left patella, or knee, I found two bruises, and on the right left here I found another bruise; I didn't observe any other bruises on the body; I made some examination around that porch; when I reached the home Sunday I found an iron bedstead sitting on the gallery, extending from the north to the south; I noticed the space between the bed and this house to be about 18 inches, and between the bed and the outer side of the porch was about twenty inches; I noticed that the two gallery posts, one at the head and one at the foot of the bed, were bloody, and there were prints on them; I could make out distinctly that someone had caught hold of those posts with bloody hands; I found that the floor here had evidently been washed with water and that coagulated blood filled up the cracks of this floor immediately on the side of the south end of the bed; coagulated blood is hard blood; I didn't see the sheet, and I know the pillow had been removed from the bed; I noticed that about half of this top mattress was saturated with blood, that was in an irregular shape, and I have a drawing of that; we removed that mattress, and we found that immediately below the pillow here there was a bloody space on the second mattress possibly extending out four inches between the mattress and the outer edge of that mattress was saturated with blood; I saw that the bed railing also was saturated with blood under that; I noticed that the vines back here east of the bed had several spots of blood on them; I noticed that a two by four plank immediately above that about seven feet and a half, that the under edge of that plank was spattered with blood; there was a space above the bed about twenty-seven or thirty-three inches where I think I counted between fifty and sixty blood spots; that was on the ceiling; those blood spots ran across the gallery, and leading out from those spatters of blood there would be little projections of blood and those projections extended over to the front and to the house side of the bed; those blood spots extended about thirty-three inches across the gallery here and about twenty-seven inches this way, almost immediately over and just a little to the north of the large spot of blood *Page 367 on the top mattress; I also noticed blood some ten feet to the south of the bed, immediately above the door; there were a number of spatters of blood on the side of the wall; I don't believe I observed which way those spatters of blood were going; I noticed that two or three pieces on the side had been removed when I got there, the weather boarding or siding had been removed; the under side of the two by four plate of that gallery had spatters of blood immediately under it; I observed the ground close to the porch and saw clots of blood, and I think I saw small pieces of bone, and there was quite a large space that looked like water had been poured on it; this floor here looked like it had been washed up, judging by the amount of blood in the cracks and the absence of blood on the floor."
The sheriff testified that he arrested appellant that night and searched him when he "found a watch on him in his watch pocket, and a pocketbook with a Woodman receipt in it; I call this side pocket in the pants the watch pocket; that was a leather pocketbook of the purse style; I opened that pocketbook and found a Woodman receipt in it; I also found a couple of handkerchiefs stuck down in his back pocket; one of those handkerchiefs had a considerable amount of blood on it, and the other didn't have quite so much, the bloodiest one was in the bottom part of his pocket; I then took him out behind the house and stripped him and found that his underclothing was bloody, and there was a good deal of blood on his undershirt; I thought I put that underclothing in this grip; I found that the undershirt had a considerable amount of blood in front, spattered with blood, mostly on the left side, like that, in front; the right sleeve of the undershirt was nearly saturated in blood, and on the back of his shirt there were several drops of blood about his shoulders and just behind; I am pretty sure that the blood on his back was about along here, somewhere about the shoulder blades; his drawers were bloody, and there was a great deal of blood on his right knee, and I think there was some blood on the left one lower down; I removed his shoes and his socks and found that his feet were bloody."
The State introduced testimony showing several quarrels, all apparently growing out of the management of the two sets of children, and after one of these quarrels, proved by Clint Brown that defendant told him his wife was mistaken about him trying to get her to come back when she left the farm and moved to Brownwood; that she wanted to come back; "that she had talked to a lawyer or someone and made her wise and she was working he thought so as to get some of his property in some way, and he said that she was going to try to make it so hard for him and his family so that he couldn't put up with her and he would have to run her off and she thought by that that she would get some of his property." De Shazo and others testify to appellant's effort to sell the farm on which they were living, and when asked if his wife (deceased) would sign the deed, said she had nothing to do with it. It further appears that he had placed the farm with Noel Daniels, a land agent, for sale. On Wednesday before the homicide took place on Saturday night, Mr. Daniels and Mr. John Staton had stopped by and *Page 368 spoke of trading for the farm. Appellant agreed to meet them in town and did meet them on Friday, and was to see them on Monday following to see if they could close a deal. A number of other instances were shown, showing quarrels.
Defendant introduced a number of witnesses who testified that they had seen them together on various occasions and that the most amicable relations seemed to exist between them, and it also was shown that prior to this homicide appellant had always borne a good reputation as a law-abiding citizen. On the trial he testified denying that he had inflicted the wounds, and admitting that several quarrels arose over the management of the children. He testified that he loved his wife, and to the most friendly relations, explaining how each of the quarrels arose that the State's witnesses had testified to. He also testified: "I am sure that my wife laid down in bed first that night; I was up during the night; at the time these injuries were inflicted on my wife I was lying on the side of the bed next to the wall, and I was lying on my right side; that would place me facing my wife on the east; I was up one time that night after I had laid down; I thought that I was just dozing; I had been up just a short time before that, I don't know just how long, and came back and lay down, and I heard something on the floor make a noise, and the next thing I heard was a blow, a lick right at me there, and I opened my eyes and looked up that way, and as I did a man was standing there making a stroke, coming down this way with his arm, with something that looked to me about that long in his hand, and I jumped to get up off of the bed, just jumped up off of the bed, and as I got to the foot of the bed I was straight, and I looked around that way and seen him, and I just says to him, `You son-of-a-bitch, you,' and he advanced coming towards me, and I went towards the door of this north room; the door opened to the left and as I went in I jerked the door this way and the door was open and I looked out and saw the man pick up my pants and jump off of the gallery; as I jumped up off of the bed I felt something brush my hair, the wind of the instrument, and I heard it hit the wall; I don't know where the lick went to that he was striking when I opened my eyes, I jumped to get out; the thing was coming down and I was up before I heard the wall struck; I went in that room for my gun, and I got it; when I saw him jump off of the gallery I went and got my gun out of the closet and got my cartridges up on top of the closet and put them in my gun; I didn't put but one cartridge in my gun because the firing pin was broken out of the right hand barrel and the left hand barrel was the only one that would shoot; I didn't know for certain at that time that my wife was hurt; when I came out with the gun I looked and couldn't see anybody, and then the next thing that attracted my attention was my wife saying `Oh Lordy, oh Lordy,' that attracted my attention, and she was sitting up in the bed with her head down this way, and I set my gun down and went to her; I didn't search any further for the man at that time because I didn't see anybody and I knew she was hurt and I went to her; I went to her and asked her what I could do for her, and I put my hand on *Page 369 her forehead and felt the wound, but I couldn't see it, and she never gave me any answer; I asked her about three times what I could do for her, and the last time she told me to get a wet rag and put it on her head, she had a pain in her head, and I laid her down on the bed; I couldn't see at that time whether her head was bloody or not, the moon made a shade on her face, but I could feel the wound; I had hold of her and laid her down on the bed; the next thing that I did was to step to the door there and call Lloyd and told Lloyd about somebody knocking his mother in the head, and hollered for Cleola and told her to get up, and they all jumped up and came out there, and then I went to get a rag and they all went right with me to get the rag, and when we got in there Cleola found a rag, she got a rag out of the drawer of the safe, and so I got a pan of water and the rag, and I brought a lamp with me and lit the lamp; I then went to my wife and she was still groaning and making noises, and I just dipped the rag down in the pan and put it on her head, but I seen how bad she was hurt, and then I went right back in there and rang for the doctor; I phoned central and told central I wanted Dr. Tottenham and to tell him to get there as quick as he could, to come in an automobile, a burglar had knocked my wife in the head and tried to kill me; I then turned around and rang Beeman and told Beeman the same words, and went right back to my wife, and when I got back out there she just raised right up and strangled and vomited all in her lap and blood gushed everywhere; when she was doing that I was right at her back, I just caught hold of her shoulders; the vomiting of the blood fell right in her lap, and she strangled and kept strangling and vomiting right on the edge of the bed and right on the floor there and in her lap; after she did that I laid her back down on the bed; when I laid her down I put the wet rag on her head, and she says, `Take it off, take it off,' this way with her hand; I thought she meant the rag, and I raised it up, and I says, `Take what off?' and she says, `Those plasters,' and she says, `Come to me, come to me,' and I says, `I am here,' and she says, `Come to me, I am going to die'; I says, `Who come to you?' and she says, `That woman'; the children commenced crying then, and she says, `Don't cry,' and I don't remember for certain whether she said children or not, but she says, `Don't cry,' and then she said a number of words that I never could understand distinctly; during all that time I was just dressed in my undershirt and drawers; when I was holding her up there, I was so excited that I don't remember whether any part of my body or arm was against her or not; I don't know whether I got blood on me while that was going on or not; but I guess I did; I saw some blood on me afterwards; I was bare-footed at that time; I washed off some of the blood on that floor — as she quieted down and I got her sorter settled down I noticed myself standing in that blood, and I expected the doctor and Mr. Beeman to come any minute, and I just picked up what was left in the pan of water and just poured it down there, and just got around there and put my hand on the gallery post and raked it off the floor *Page 370 this way with my right hand; I used all of that water, and then I went out and got some more water in the pan and set the pan down there; after I stepped in that blood, I went into that north room to get my pants, I was naked and I got my pants and put them on; I hadn't been dressed until Mrs. Beeman came, and then I went into that north room and got my pants; my shirt was lying out here on a chair, and when I came out I put that shirt on and put my vest on; my shoes and socks were right there, and I put them on; I put my shoes on without washing my feet; Mr. and Mrs. Beeman were the first parties to come there." And then his testimony as to what he told Dr. Tottenham and Mr. Beeman is in substance the same as their testimony.
This gives a rather full but general statement of the case, and in disposing of the different bills of exception the matter will be further presented.
The first bill of exceptions complains of the action of the court in overruling the motion for a continuance. As to the witness McRae, it appears that no process had ever been issued for said witness, and his residence at the time of this trial was unknown, and the diligence was, therefore, insufficient. The alleged testimony of the witness Mrs. Mollie Tyler is hearsay, and would not have been admissible had she been in attendance. Neither would the testimony of Mrs. Rimmer be admissible. The attendance of the other witnesses named in the application was procured, and there was no error in overruling the application.
Appellant objected to that portion of the testimony of Dr. J.W. Tottenham where he testified about making a test with the iron rod to see if one could strike the wall and make the indentation in the wall, striking where the defendant said the man he claimed struck the blow stood. It is true that Mr. Beeman testified on cross-examination that when Dr. Tottenham arrived and went to go behind the bed he "pulled the head of the bed out just a littleway from the wall towards the porch," so the doctor could go behind it. The doctor testified positively the bed was not moved after he arrived until the experiment was made, and no other witness testified anything about the bed being moved except Mr. Beeman, and his testimony considering the testimony of the doctor might go to the weight to be given it by the jury, but would not render it inadmissible. But this is not all the testimony in the record. Hard Daniels, deputy sheriff, testified he told appellant, "`Mr. Brown, I want to get right on the scene where this tragedy occurred,' and he then pointed here to the bed; we were all on the porch, and he says, `Right here,' and pointed to the bed, and then walked and showed me on the east side where the burglar stood. . . . Then he asked someone to hand him the iron, and when it was handed him, and he reached over Mrs. Brown to see if he could strike the wall with the instrument; that he stoodexactly where Mr. Brown (appellant) told him the burglar stood, as near as he could." That Dr. Tottenham also made the experiment, and if they stood exactly where Mr. Brown said the man stood it would be immaterial whether or not the bed had or had not been slightly moved. He also testified to other experiments, and that Dr. *Page 371 Tottenham fitted the iron in the indenture in the wall; that they would not fit with a man standing on the east side of the bed where Mr. Brown said the burglar stood, but one had to go around to the head of the bed, and then the taps fit those indentations. These indentations, he says, were on a level with the bed, and that they could not have been made with the rod by a person standing at the east side of the bed, but for the nuts on the rod to fit the indentures in the wall one would have to stand at thehead of the bed. That there were two of those indentures or marks on the wall about a half inch apart. The testimony of this witness, together with that of Dr. Tottenham, clearly renders these experiments, made there on the ground that night, standing where appellant said the man stood, admissible, and if the jury gave credence to the testimony it proved that a man standing by the east side of the bed could not have struck the blows that made the indentures in the wall, because the nuts on the iron bar could not be made to fit in the indentures from the side, but when one got to the head of the bed the nuts fit in the indentures to a nicety. Mr. Branch, in his work on Criminal Law, well states the rule to be: "If experiments as to any disputed fact, testified to at the trial, appear to have been made under conditions similar or approximately similar to those which surround the original transaction, and such experiments would serve to shed any light upon that transaction, proof of the results of same is admissible. Speers v. State, 55 Tex. Crim. 368, 116 S.W. Rep., 568; Clark v. State, 38 Tex. Crim. 30, 40 S.W. Rep., 992; Schauer v. State, 60 S.W. Rep., 249; Martin v. State, 40 Tex.Crim. Rep., 51 S.W. Rep., 912; Hodge v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 577."
In the next bill of exceptions it is shown that on cross-examination the defendant propounded to the witness Viola Wilson the following question: "Haven't you heard your mother say that if it were not for the children they would get along all right?" The objection of the State was sustained, that this would be hearsay testimony. Defendant in the bill alleges that he "expected" to prove that she heard her mother so say, whereas to have rendered the bill sufficient, what could and would have been proven by the witness should have been stated. But the record as a whole discloses, both from the standpoint of the State and the defendant, that all the troubles testified in regard to arose over differences about the children, but this testimony was given by persons who heard the altercations and had a personal knowledge of the matters, and not what they heard someone say. What Mrs. Brown may have said about the cause of the troubles between her and her husband, made long before the homicide, would not be admissible either for or against the defendant. The rules of evidence are the same, whether for the State or defendant, and to open the door this wide, one could see the incalculable damage if the ex parte statement of the deceased made long prior to the homicide could be introduced in evidence to establish or disprove motive. What Mrs. Brown had said as to the cause of the troubles theretofore existing would be hearsay. Defendant denies being *Page 372 the responsible agent for her death, and as this character of testimony could not be used for any purpose except to prove or disprove motive, and being purely hearsay statements, the court did not err in excluding it. This under any and all circumstances would but tend to show her opinion of the causes, and would not in the least tend to show what actuated the defendant, if he in fact committed the crime. Johnson v. State, 66 Tex. Crim. 586, 148 S.W. Rep., 328, and cases there cited.
This homicide took place in September, 1911. It is made to appear that some five or six years prior to this time she had quit her former husband, L.H. Brown, and that she fled from him at that time with her young son, Floyd Brown. It further appears that in 1909 she sued for and obtained a divorce from L.H. Brown, he being served personally with citation; that L.H. Brown had again married and was living in Comanche County with his then wife, while deceased was living with appellant, George Brown, as her husband in Brown County. The record further discloses that L.H. Brown was at his home in Comanche County on the night of the homicide, three witnesses testifying to this fact, and no witness testifies to L.H. Brown ever having been in Brown County prior to this homicide, nor at any time thereafter until summoned as a witness in this case. However, defendant on cross-examination sought to prove by Viola Wilson that in 1906, while they were living in San Saba County, that she heard her mother, deceased, say she thought she had seen L.H. Brown in Richland Springs where they were living. They do not state they expected to prove that L.H. Brown was in fact in that town, and if so he at any time from 1906 to 1911 ever sought the whereabouts of deceased, although it is conclusively shown that he knew her whereabouts from 1909 to the date of her death, and that she had married appellant.
By Hardie Graham defendant offered to prove that in 1906, while Mrs. Brown was living in Richland Springs she asked who a certain man was, and he told her he did not know; that she looked excited, and said she thought it was her former husband, L.H. Brown, and he had said he was going to have their youngest child. He further stated he could not identify L.H. Brown in attendance on court as the man. By J.B. Miller it was stated that they could prove that while she resided in Richland Springs in 1906 or 1907 she purchased a shotgun, and asked if it would kill a man, not naming the man. By N.T. Chamberlain it was stated that in 1906 he was deputy sheriff of San Saba County, and someone called him over the telephone and gave his name as Brown, and asked him "if he knew a lady there with three children, two girls and a little boy," and upon being answered in the affirmative, stated he was coming over there to get the little boy, but if he ever came he never learned of that fact, and that he did not know the party doing the talking. J.B. Nawls would have testified if permitted that in 1906 he was deputy sheriff of San Saba County; that Mrs. Brown had lived with Mrs. Abbott, and that a day or two after Mrs. Brown had moved away from the home of Mrs. Abbott, someone entered her home at night *Page 373 and turned the light out. No testimony was introduced to connect L.H. Brown with this matter, only that Mrs. Brown had once lived with Mrs. Abbott. They also desired to prove the same fact by Mrs. Abbott, and that about this time a strange man called at her home, claiming to be a "piano man." She could not identify L.H. Brown, who was in attendance on court, as that man. By Dr. Rimmer it could have been proven that while Mrs. Brown was residing in San Saba County in 1906, he was called to her home at night, and she objected to a lamp being lit, stating that she and her former husband, L.H. Brown, were separated, and he had threatened her life, and had said he was going to have the little boy or kill her. We have elected to treat all these bills jointly, as they all cover the same period of time, and all relate to the year 1906, five years prior to the homicide. If L.H. Brown did at that time make the threats, and deceased feared him and feared that he would take their little boy, and was in hiding from him, this was just after their separation and for five years thereafter, three years of the time knowing where his wife and child were, it is not shown, nor was it offered to be shown that he had said or done one thing to secure the possession of the child or made any effort to see Mrs. Brown. But does the testimony show that it was L.H. Brown who was the piano man that called at Mrs. Abbott's home? No, and if it was he made no effort to see or locate Mrs. Brown. Does any testimony show that it was L.H. Brown who entered the home of Mrs. Abbott at night, where Mrs. Brown had formerly lived? No. In fact it was not proposed to show that L.H. Brown was in fact the person who did any or all of these things, and the court did not err in excluding the testimony. If it should be conceded that at this time in 1906 just after L.H. Brown and his wife had separated, he had in fact made the threat "that he would have the little boy or kill Mrs. Brown"; that he in fact went to San Saba and in the night time entered Mrs. Abbott's home after Mrs. Brown had left; that he represented himself to be a "piano man," and went to her front gate; that he did in fact search for Mrs. Brown and the boy, and talked with the sheriff; that at that time Mrs. Brown feared him and bought a gun and was trying to keep it concealed from him, yet it affirmatively appears in the record that L.H. Brown for three years prior to the homicide knew her whereabouts, and she, by suing for a divorce, made it known to him by having him served with a citation; that he made no effort to get the child; had married him another wife, and settled down in Comanche County; the defendant did not state he expected to nor offer to prove that subsequent to 1906 for five years, L.H. Brown did anything, or said a word relative to deceased, and these remote circumstances would not be admissible to show that in September, 1911, perhaps L.H. Brown may have been the man who killed appellant's wife, in view of the fact it was not shown nor attempted to be shown that L.H. Brown on September 9, 1911, the night of the homicide, or any time prior thereto, was in or had ever been in Brown County. In the case of McCorquodale v. State, 98 S.W. Rep., 879, our presiding judge correctly states the *Page 374 rule to be: "That investigations with reference to other parties than the accused would not be permitted, unless the inculpatory facts are such as proximately connect the party not on trial with the transaction. In other words, if a party other than the accused had the motive and opportunity, and was placed in such proximity to the homicide as to show he may have been the guilty party, the evidence may have been introducible; but remote acts and threats would not be, unless other facts in closer proximity and pertinently connecting the third party with the homicide at the time of the commission of the offense were shown. The mere fact that deceased may have had animus is not sufficient. The mere fact that deceased had threatened to kill other parties is not sufficient to admit it, unless there are other facts to show that the third party may have been placed in such position that he may have committed the homicide." Not only do the facts not bring the above testimony within the rule above announced, but the record affirmatively shows that L.H. Brown was in Comanche County at the time of the homicide and was not and could not have been in Brown County at that time. In Wallace v. State,46 Tex. Crim. 341, 81 S.W. Rep., 966, this court, speaking through Judge Henderson, says: "We do not believe it was competent for the appellant to prove that deceased, Austin, had certain enemies, and that he was apprehensive of harm from them. The evidence was too remote; the rule being that, before testimony of this character is admissible, the evidence must tend at least to some degree to show that such other person did the killing. The mere fact that other parties may have entertained feelings of hostility or ill will or had made threats against deceased will not be sufficient." In the case of Kunde v. State, 22 Texas Crim. App., 65, this court, speaking through Judge Willson, overrules a number of cases, and states that evidence that perhaps another committed the crime was admissible, as such person is shown to have been in such proximity that it was possible for him to have done so. The opinion reads: "We presume that the learned trial judge rejected the proposed testimony upon the authority of Bowen v. The State, 3 Texas Court of Appeals 617[3 Tex. Crim. 617]; Boothe v. The State, 4 Texas Court of Appeals 202[4 Tex. Crim. 202]; Walker v. The State, 6 Texas Court of Appeals 576[6 Tex. Crim. 576]; Holt v. The State, 9 Texas Court of Appeals 571[9 Tex. Crim. 571]; and perhaps some other early decisions made by this court. The doctrine of these cases, in the broad terms therein announced, while perhaps sustained by the weight of authority, at the time the decisions were made, is no longer the doctrine recognized by this court, and by what we consider the weight of authority of the present day. That is, the rule announced in those cases has been qualified and very much modified by recent decisions, and is not the rule which now obtains. (Dubose v. The State, 10 Texas Crim. App., 230; Hart v. The State, 15 Texas Crim. App., 202.) In McInturf v. The State, 20 Texas Court of Appeals 335[20 Tex. Crim. 335], it is said, `the rule now established is that investigation with reference to other parties than the accused should not be permitted in cases either positive or circumstantial, unless the inculpatory facts are such as are proximately connected with the transaction. In other *Page 375 words, to show remote acts or threats would not be admissible unless there were other facts also in proof proximately and pertinently connecting such third party with the homicide at the time of its commission.' (Citing Means v. The State, 10 Texas Crim. App., 16; Aikin v. The State, id., 610; Hart v. The State, 15 Texas Court of Appeals 202[15 Tex. Crim. 202], 522; see also 15 Lea, Tenn., 694, a case in point.)"
In this case there is no testimony placing L.H. Brown in Brown County that night, or in such proximity to it that it would have been possible for him to have committed it, nor did the defendant state when he offered the testimony he expected or thought he could make such proof. The rule as stated in the Kunde case, supra, has never been broadened nor enlarged, but has been always followed since its rendition, as is shown by the Wallace and McCorquodale cases and many others that could be cited. The court permitted those witnesses who heard L.H. Brown say anything in the premises to testify to such matters; permitted the return on the citation issued in the case wherein Mrs. Brown sued L.H. Brown for a divorce to be introduced, and the judgment of the court where a divorce was decreed at the instance of appellant. This return shows the citation to have been issued and served in 1909, while the decree of divorce shows it to have been granted and entered in December, 1909. The court did not err in excluding the allegations in the petition and citation as grounds for the divorce, as these would be but the ex parte statements of Mrs. Brown, and the defendant did not attempt to nor state that he would offer any evidence that L.H. Brown had become offended at the allegations contained therein, or that after being served with a copy of the petition and citation he made any effort to see Mrs. Brown or obtain the child, or that he ever was in Brown County after being served with the citation, until he was summoned as a witness in this case after the death of Mrs. Brown. These are all the bills of exception in the record except some that relate to statements of Mrs. Brown, and we will treat of them altogether.
By Mrs. Minnie Thomas he states he expected to prove that Mrs. Brown about a year before the homicide, had stated to her that she and appellant were not separated at the time she was living in Brownwood; that she loved Mr. Brown (appellant) and the children were the cause of the trouble between them. By E.I. Drinkard, Mrs. E.I. Drinkard and Berney Brown, about eleven days before the homicide they had heard Mrs. Brown state that appellant had rescued her when she was in the creek bathing and was about to drown; by Mrs. Drake, that some time before the homicide she was talking to appellant, and appellant told her he would not allow Mrs. Brown to drive a certain horse, and she (his wife) got hot about it, but would get over it; that he would not let her drive the horse because it would kill her. Appellant was himself permitted to testify to all facts, and testified to all these circumstances, but the insistence is that the witnesses named should have been permitted to testify to what they heard Mrs. Brown say, and in the last instance Mrs. Drake to testify what she had heard defendant *Page 376 say some time prior to the homicide. The last would, under all the authorities, be but a self-serving declaration, not made at a time to be res gestae of the offense, but made some time prior thereto, and under no rule of law we know of would it be admissible. As to the witnesses Mrs. Thomas, Mr. and Mrs. Drinkard and Berney Brown, it was as to statements of Mrs. Brown. Even if Mrs. Brown had stated she loved her husband, would that be any evidence that her husband (appellant) loved his wife? Appellant cites no authorities from this State holding such testimony admissible, but cites some from two other States, one being from Missouri, where the court at one time held the testimony admissible, then overruled the decision, saying no authorities sustained the former opinion. So that it appears that the opinions of the courts of that State would be of no weight unless the reasons therein stated should have foundation in the well-settled principles of law, and this, we think, the opinion in the Leabo case does not show, but demonstrate an effort to engraft a new rule of evidence, to which the great weight of authority is opposed. As stated in some of the opinions, suppose instead of charging appellant with the murder of his wife, he had been charged with making an assault with intent to kill her, it would not be seriously contended that if his wife was living, anything she might have said in regard to their relations to the above named witnesses would have been admissible as original testimony, but if it was desired to introduce such testimony it would have been necessary to place her on the witness stand. This we understand to be the rule under all the authorities, and if the testimony of these witnesses would be inadmissible as original testimony if she was living, on the ground that it would be hearsay, then her death would not change the character of testimony, but it would still be what is termed hearsay testimony. It is true that statements of this character when made at a time to be res gestae of the transaction, or made at a time when death was impending, are admissible. But in this case there is no contention that these declarations were made under either of those conditions, but it is shown beyond the peradventure of a doubt that they were made long before the homicide while she was apparently in perfect health. When the declarations or statements of a deceased, not made under the above conditions, are admissible, has been the subject of much discussion by members of this court at various times, and in the Cline case and other cases it was held that they would not be admissible under any other condition than the two exceptions above stated, even though made under the sanction of an oath, but the general rule is, and which has been finally adopted by this court, that when such declarations are made under the sanction of an oath, and the opposite party had an opportunity to cross-examine the witness, then such testimony was admissible under those conditions after death, but we know of no other exception to the rule than the three above recited as applicable to the facts in this case, and the testimony offered is not brought within either of them, but the statements offered to be introduced in evidence were ex parte in their nature, and purely hearsay. In the case of Tomerlin v. State, 26 S.W. Rep., 66, this court says: *Page 377 "The court did not err in refusing to admit the evidence of Mrs. Bass, offered by defendant, that deceased on the day after being shot, stated to her, if defendant shot him, such shooting was accidental, because they had been good friends, and defendant had no cause to shoot him." The court held this inadmissible because it was not a dying declaration, was not res gestae of the transaction, and was hearsay, although it would have a strong bearing on whether or not the appellant in that case had a motive, etc. See also Harris v. State, 1 Texas Crim. App., 74; Estes v. State, 23 Texas Crim. App., 600; Segura v. State, 16 Texas Crim. App., 221; Chumley v. State, 20 Texas Crim. App., 547. The court permitted Berney Brown to testify to what he knew of his own knowledge, and only excluded what he said had been told him, and as to facts which he did not claim to have any personal knowledge; permitted Mr. and Mrs. Drinkard to testify as to what they knew and had observed as to the friendly relations existing between appellant and his wife as tending to disprove motive, and only excluded what they would have said they had no personal knowledge but had only been told. Mrs. Drake did not pretend to know any fact of her own knowledge, but would only have recited a statement of defendant. Any and all persons who knew or pretended to have any knowledge as to any and all of the matters were permitted to testify to such facts, the court only excluding what they would have testified "they had been told," and he did not err in so doing.
Floyd Brown testified he was asleep when his mother was struck the blows, but was awakened by appellant, and when he went out on the gallery deceased said, "Take those plasters off of my eyes." The State introduced witnesses who testified that Floyd Brown had told them his mother did not speak after he awoke. The defendant then introduced Mrs. Beeman, who testified that she was called to the home in about a half hour or such matter after the injuries had been inflicted, and that Floyd Brown then told her about his mother making the statement to him he had testified to on this trial. On this phase of the case the court instructed the jury:
"You are instructed that any testimony, if any, to the effect that Lloyd Brown and Cleola Brown stated that Sallie Brown, deceased, did not speak after her injuries, can not under the law be considered by you as any evidence that Sallie Brown did not speak or talk after her injuries, but can only be considered by you, if at all, in weighing the credibility of said Lloyd Brown and Cleola Brown as witnesses.
"You are instructed that the testimony of Mrs. Beeman concerning statements made by Lloyd Brown to her, — that even though you believe such statements were made to the effect that the deceased, Sallie Brown, spoke or talked after receiving her injuries, that you can consider such testimony only in support of the credibility of said Lloyd Brown as a witness, and you can not consider said testimony of Mrs. Beeman as any evidence whatever that the deceased. Sallie Brown, did in fact speak or talk after the injuries were inflicted upon her."
Appellant claims that the latter part of this charge is upon the weight *Page 378 of the testimony, and it was improper to instruct the jury that they could consider the testimony of Mrs. Beeman only in support of the credibility of the witness Lloyd Brown, and cites us to the case of Ball v. State, 38 S.W. Rep., 448. In that case it is clearly shown that all this testimony was clearly admissible, and admissible solely for the purpose of discrediting or supporting the testimony of the witness Lloyd Brown, but it is insisted that it is upon the weight to be given the testimony. If this should be true, it would be a matter of which he could not complain. The court told the jury that if they believed Lloyd Brown told Mrs. Beeman that his mother did speak they could consider the testimony in support of the witness. If this be upon the weight of Mrs. Beeman's testimony, it was an error in favor of defendant in telling them they should so consider it. In instructing the jury that they could not consider the testimony of Mrs. Beeman as any evidence that Mrs. Brown did in fact speak, the court is perhaps subject to some criticism. What Lloyd Brown told Mrs. Beeman would not be admissible as original testimony, and only became admissible in support of the witness after the State had introduced witnesses who testified to contradictory statements to affect his credit, but if they believed that Lloyd Brown in a half hour or an hour after the injuries were inflicted told Mrs. Beeman that his mother had spoken, it would have a strong tendency to cause them to believe that he was telling the truth about the matter, and of necessity, under such circumstances, have some weight in determining the issue as to whether she spoke or not. While it is true that Mrs. Beeman's testimony would not be admissible to prove that Mrs. Brown did speak after being injured, yet, as before stated, it would, of necessity, if they believed Mrs. Beeman's testimony, have some weight with the jury in determining the issue, and it would have been proper for the court to have omitted that part of the paragraph. But is appellant in any condition to complain of this charge? As to the testimony introduced by the State to prove that Lloyd Brown had stated his mother did not speak on that occasion, the appellant requested the court to charge the jury: "You are instructed in this case that the testimony of the witnesses Early, McGaugh and Denman concerning statements of witness Lloyd Brown, in the office of Early at Brownwood, — that even though you believe such statements were made to the effect that deceased made no statement, that you can consider such evidence only for impeachment purpose, and that you can not consider said testimony of said Early, McGaugh and Denman as any evidence whatever that the deceased Sallie Brown did not in fact speak and talk after the injuries were inflicted upon her." In pursuance of this request of defendant, the court embodied this special charge in his main charge, and having requested this rule of law to be applied to this character of testimony, if the court erred in so doing, the appellant will not be heard to complain as it was at his instance and invitation that the court applied this rule of law to this character of testimony. In the case of Cornwell v. State, 61 Tex.Crim. Rep., this court held: "It is a general rule of law that when counsel has requested the court *Page 379 to charge a given proposition of law and it is given, such error can not be taken advantage of by the party whose counsel made the request." In this case will be found a long list of cases cited both from this State and other States so holding, and as we understand the law has always been the rule in this court and in our Supreme Court. Again, if it had not been requested by appellant, would it be such error as would call for a reversal of the case? If Mrs. Brown spoke after she received the injuries nothing, it is claimed, she said would even tend to show whether or not appellant was the person who inflicted the injuries, and that was the question to be tried in this case. It can not be contended that any remark she made, if she made any, would throw any light on who struck the fatal blows, consequently under no circumstances in this case would this paragraph of the court's charge present any harmful error.
It is contended by appellant that the "eighth paragraph of the court's charge authorized the jury to find appellant guilty of murder in the first degree upon either express or implied malice." Said paragraph reads: "In order to warrant a verdict of murder in the first degree, malice must be shown by the evidence to have existed, — that is, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the killing was a consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately, with a sedate mind, that is at the time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient. All that is required is that the mind be cool and deliberate in forming its purpose, and the design to kill is formed." A reading of this paragraph shows that the complaint is without foundation. The court's charge as a whole in presenting murder in the first degree is clothed in language frequently approved by this court. For a citation of authorities see Branch's Criminal Law, sections 419-420.
This was a case of circumstantial evidence, and the court instructed the jury:
"In this case the State relies for a conviction on circumstantial evidence alone. You are instructed that in order to warrant a conviction of a crime on circumstantial evidence, each fact, necessary to the conclusion sought to be established, must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is the necessary facts to the conclusion) must be consistent with each other and with the main facts sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, and no other person, committed the offense charged.
"But in such case it is not sufficient that the circumstances coincide with, account for and therefore render probable, the guilt of the defendant. They must exclude, to a moral certainty, every other reasonable *Page 380 hypothesis except the defendant's guilt, and unless they do so, beyond a reasonable doubt, you will find the defendant not guilty." The criticisms of this charge are without merit, and the charge as given has been so frequently approved by this court it almost seems unnecessary to cite authorities, but see Ramirez v. State, 43 Tex.Crim. Rep.; Bell v. State, 71 S.W. Rep., 24; Baldez v. State, 37 Tex.Crim. Rep.; Boggs v. State,38 Tex. Crim. 82; Trevino v. State, 38 Tex.Crim. Rep.; Blount v. State, 64 S.W. Rep., 1050; Reeseman v. State,59 Tex. Crim. 430, 128 S.W. Rep., 1126; Mosely v. State,59 Tex. Crim. 90, 127 S.W. Rep., 178.
As the State introduced the statements of the defendant on the night of the homicide, that he had just returned to his bed, and was dozing when someone came in on the gallery, and struck Mrs. Brown one or two blows, the court instructed the jury: "You are instructed that when the statements or declarations of a defendant are introduced in evidence by the State, then the whole of the declarations or statements are to be taken together, and the State is bound by them, unless they are shown, by the evidence, beyond a reasonable doubt, to be untrue; such statements or declarations are to be taken into consideration by the jury as evidence in connection with all other facts and circumstances of the case. But in this connection, you are instructed that the State is not bound to prove the falsity of such statements or declarations by positive testimony, but the same may be shown to be false by circumstantial evidence." There are several criticisms as to this charge, the first being that the part wherein the court instructed the jury, "But in this connection, you are instructed that the State is not bound to prove the falsity of such statements or declarations by positive testimony, but the same may be shown to be false by circumstantial evidence," is erroneous, in that (1) "it is upon the weight of the testimony; (2) it is misleading and calculated to prejudice." The second ground that "it is misleading and calculated to prejudice," is too general to point out any error, if error there had been. (Sue v. State, 50 Tex.Crim. Rep.; Quintana v. State, 29 Texas Crim. App., 401; Holmes v. State,55 Tex. Crim. 331; Duncan v. State, 55 Tex.Crim. Rep.; Pollard v. State, 58 Tex.Crim. Rep..) The other ground, that this part of the charge "was upon the weight of the testimony" was so thoroughly considered by this court in the case of Beeson v. State, 60 Tex.Crim. Rep., we hardly deem it necessary to do so again. In telling them that the truth or falsity of a given fact may be proved by circumstantial evidence as well as positive testimony is no indication that it has been so proven by either character of testimony. It is but the statement of a proposition of law that all recognize to be true, — that any fact can be proven as well by circumstantial evidence as positive testimony. This precise question was presented in the case of Kugadt v. State, 38 Tex.Crim. Rep., 44 S.W. Rep., 989, and we held adversely to appellant's contention, as well as in the case of Franklin v. State, 37 Tex.Crim. Rep., 39 S.W. Rep., 680.
While not specifically presented in the motion for new trial, yet it is *Page 381 urged in this court that this charge is not specific enough in informing the jury what portion of appellant's statements must be shown to be false, — that is, that the portion of the statement which is exculpatory in its nature must be shown to be false. As stated before, this ground is not urged in the motion for new trial, and we think the charge as given is sufficient, but be that as it may, the court at the request of appellant gave the following special charge: "You are further instructed concerning the statements of defendant, if any, about how the deceased was injured, that the burden of proof is upon the State to prove beyond a reasonable doubt the falsity of said statement, and proof of the falsity of said statement, if any, in immaterial matters is not sufficient but the State must prove the falsity of every statement, if any, made by defendant, which in your mind raises, if any, a reasonable doubt of his guilt." If the main charge as given was subject to any criticism, certainly when the court gave this special charge there could be no further ground of complaint that the charge was not sufficiently specific in instructing them that all exculpatory statements which raised in their minds a reasonable doubt of his guilt must be proven to be false. The third ground is that this portion of the charge, and no other part, did sufficiently present the contention made by appellant, that another person may have killed deceased, and if the jury had a reasonable doubt of that fact he should be acquitted. What testimony is there that raises this issue? The statements of defendant on the night of the homicide, and his testimony on the trial. There is no other witness who testifies to any fact which would raise that issue. The court first instructs the jury on circumstantial evidence, and tells them: "It is not sufficient that the circumstances coincide with, account for and therefore render probable the guilt of defendant. They must exclude, to a moral certainty, every other reasonable hypothesis except the defendant's guilt, and unless they do sobeyond a reasonable doubt they will acquit the defendant." He next tells the jury they must take into consideration the statements and declarations of defendant, and the State is bound by them unless they are shown beyond a reasonable doubt to beuntrue. He then gave the special charge hereinbefore copied, and appellant asked no other charge on this phase of the case, the complaint being first made in regard to this matter in the motion for new trial. Under our decisions this would be timely, if the matter had not been sufficiently presented in the charge, and special charges as given. If the defendant's testimony on the trial had been different or presented any new defense other than the explanation or statement given by him on the trial, or had there been any other testimony adduced on the trial other than the testimony of defendant himself, raising the issue that some other person committed the crime, there might be merit in this last contention of appellant. But as there is no evidence in the record tending to show that another committed the homicide other than the testimony of appellant, and his statements on the night of the homicide, the charges as given sufficiently presented the affirmative defense as raised by the testimony. Had he desired a more specific presentation *Page 382 of this issue he should have requested that it be done. In Johnson v. State, 50 Tex.Crim. Rep., 96 S.W. Rep., 45, this court says: "There are cases which hold, where an explanation was given at the time, and the same statement is testified to on the trial as appellant's defense, that a charge on explanation would be sufficient, as it presented the matter," and we think this the correct rule, where more specific instructions are not requested. In the case of Hodges v. State, 6 Texas Crim. App., 615, this court said: "The rule is that when the court has charged on a given subject, and the counsel deem the charge insufficient, he should ask additional instructions on the subject," and in the case of Crutchfield v. State, 7 Texas Crim. App., 65, this court again said: "When the court has charged the jury as to the law of the case on trial before it, and there is no error in the charge as given, and counsel shall deem the charge defective in that it does not sufficiently present a given issue, it is their privilege and duty to request a further charge on that particular subject, and in that case it was further said that finding no special charges requested on the subject to which complaint was made, the court would conclude that the charge as given was satisfactory at the time. Many other cases might be cited rendered prior to the amendment of article 743 of the Revised Code of Criminal Procedure. And since that article was amended so as to provide that we should not reverse a case, even though an error be pointed out in the motion for new trial, unless it was such an error as resulted in injury, the rule announced in the Hodges and Crutchfield cases, supra, has been the prevailing rule in this court. The appellant in his statement on the night of the homicide, or in his testimony on the trial, named no person as the one who inflicted the injuries on his wife, but stated as he aroused from dozing a man was standing by the bed, whom he did not know, struck his wife. The court tells the jury that if they do not find this statement to be false beyond a reasonable doubt they will acquit defendant. And then charges the jury in addition to the charges hereinbefore copied, that this defendant was presumed to be innocent until his guilt was proven beyond a reasonable doubt, and in case they had a reasonable doubt of his guilt to acquit him. Would their minds have been more pertinently directed to defendant's defensive theory had the court instructed the jury, "if you believe some person other than defendant killed Mrs. Brown or you have a reasonable doubt of that fact you will acquit the defendant," than it was by the charges as given by the court? This whole defensive theory was embodied in the statement made to Beeman, Dr. Tottenham and others on the night of the homicide, and the court instructs the jury that if the falsity of this statement is not shown by the testimony beyond a reasonable doubt to acquit. The defensive theory in the case is presented in the charge of the court in a way that the jury is specifically informed that if it is true, or they have a doubt as to its truth or falsity, the defendant is entitled to an acquittal. The fact that it is not presented in just the language the defendant states in his motion for new trial he would have preferred to have it presented, will not present error. Had his defensive theory *Page 383 not been presented in the charge as given, of course it would present error, but as it was presented in a way that no jury could have misunderstood its meaning or application to the evidence, this assignment presents no error.
These are all the complaints of the charge as given, but appellant complains that the court erred in not giving his special charge in which he requested the court to charge the jury, that because appellant was charged with killing his wife the law indulged an additional presumption of innocence because of this relationship. This is not the law, and the court did not err in refusing this special charge. Cyc., vol. 12, p. 385, and cases cited.
Two of the other special charges requested were fully covered by the court in his main charge, the court's charge being drawn in terms frequently approved by this court; while as to the one relating to the remarks of the district attorney, there is no bill of exceptions in the record showing that such remarks were made.
There is one other ground in the motion for new trial perhaps that might be referred to. It complains that the court erred in receiving the verdict and entering judgment in this case, the contention being that the term had expired and the court was without authority to extend the term. The Legislature in 1909 provided for extending a term under certain contingencies, said Act being now article 1726 of the Revised Statutes. It reads: "Whenever a District Court shall be in the midst of the trial of any cause when the time fixed by law for the term shall expire, the presiding judge may extend the term of court until the conclusion of such pending trial." Under our Constitution we think the Legislature had the same authority to extend this power as it did to authorize the calling of special terms of court, and this question has been frequently held by this court adversely to appellant's contention.
Very able briefs have been filed by both counsel for the appellant and for the State, and they have been very helpful to us in thoroughly understanding the real issues in the case. Appellant does not contend that the testimony as to what Mrs. Brown told the witnesses is supported by any of the decisions of the courts of this State, but insists that the contention is supported by some cases from other States which he cites. While not taking up and discussing each of them, yet we have read such of them as are at our command and think a number of them not subject to the construction seemingly placed on them by appellant's able counsel, while at least one of them has been overruled by the court rendering it. Appellant cites us to the case of Leabo v. State, 84 Mo., 168, among others, this case being overruled by the Supreme Court of Missouri in the case of State v. Punshon, 27 S.W. Rep., 1111, and in which a number of the cases relied on by appellant are discussed, it being demonstrated that they do not sustain this contention, and are not subject to the construction sought to be placed thereon, the court saying, "It is thus seen that the principal case (Leabo v. State) is not supported by the authorities cited, nor any other authority that we have been able to find, and should be overruled." Appellant, in our *Page 384 opinion, makes the mistake of thinking it material in this case to prove the state of feeling of deceased. In this character of case where one was murdered by someone while she slept, her state of feelings would not be a material inquiry. Deceased was not being tried, but it was appellant, and it was his act, conduct and state of feeling that was an issue in the case, and if deceased did love him, this would not prove nor tend to prove that he loved her.
Again appellant contends that the case of Dubose v. State, 10 Texas Crim. App., 230, and cases following that opinion, is authority for admitting what the San Saba County witnesses would have testified occurred in 1906. As stated heretofore, neither appellant nor L.H. Brown are in any way connected with such matters except by surmise, but if it should be conceded that L.H. Brown was the party who went to San Saba and Richland Springs in 1906, the opinion in the Dubose case and the cases following it would not authorize admitting the testimony as contended by appellant. In those cases we think it is correctly held that a person charged with homicide may show as a defense that another did the killing if he can do so, but in all those cases it is held that before such proof is admissible it must be first shown that such person is in such proximity to the person slain that he could have committed the offense, and in this case the record is wholly lacking in any evidence that would place L.H. Brown in such position where it would have been possible for him to have committed the offense. These are the two main questions presented in appellant's brief, and we have given to each of them most earnest consideration, arriving at the conclusion that the court did not err in the premises. While this is a case of circumstantial evidence, the evidence offered in behalf of the State amply supports the conclusion arrived at by the jury. While appellant in his statement that night and in his testimony on the trial said a man came upon the gallery and inflicted the injuries, took his pants and went in a certain direction, the officers testified they, too, went in that direction, found appellant's pants, and further on found his knife. Between the point where the pants were found and the knife was found they discovered certain tracks; these tracks were measured, and instead of these tracks leaving the premises, they found where tracks of the same size, character and kind led back towards the house, indicating that the person who made them had returned to the house. Appellant said his wife was struck only one or two blows; the bruises on her arm, apparently while she was trying to ward off the blows that were rained on her head and on her breast and body, demonstrated that some seven or eight or more blows had been struck; the wound on the right side of the forehead measured some five inches, the brains and pieces of the fractured skull being found in various places, some of it having been swept on the ground; blood was spattered over the wall, and even on the ceiling of the gallery; it was demonstrated that a man could not stand on the side of the bed, where appellant stated the unknown man stood, and strike the blows, because the indentures in the wall, even if one could reach it with the iron bar, could not have been made from *Page 385 the side of the bed, but the one who struck the blows that made these indentures must have been at the head of the bed. But one of the most significant circumstances in the case, while appellant seeks to explain the blood on his clothing, is the fact that splotches of blood were found on the back of his undershirt. We do not understand how these splotches of blood in the back could have been made by one handling the body, but a reasonable conclusion would be that when raising the iron wedge above the head to strike another blow the blood dripped on the back. At least such is a reasonable deduction, and under such circumstances the judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, dissents — may write later.
ORDER OVERRULING MOTION FOR REHEARING SET ASIDE.