Offense, murder; penalty, five years in the penitentiary.
Three former appeals of this case will be found reported as follows: 263 S.W. 301, 272 S.W. 783, 296 S.W. 887.
A vigorous contention is made that the evidence is insufficient. Much of the testimony has been set out in former appeals of this case and we feel that it is unnecessary to here again repeat it in detail. The main incriminating facts relied on by the State appear to be in substance as follows: Deceased, who was appellant's father-in-law, came to the home of appellant on the evening of the tragedy. He was found within a few feet of appellant's home with a bullet hole in his body. He died in a short time without making a statement. A freshly powdered burned hole in a window screen wire was found in the house of appellant at a point which made it possible for appellant to have stood behind this and shot deceased at the point where his body was found. The bullet found in the body of deceased was of a caliber which fitted a gun belonging to appellant and shown to have been in his possession on the evening in question. Appellant is shown to have left the house immediately after the shooting, carrying his gun, without extending any aid to the deceased, nor was he seen after the shooting around his home at any time prior to the removal of the body of deceased, which occurred some hours later. Within a few minutes after the shooting he was asked by a neighbor, who heard and witnessed the commotion at the house, if anybody was sick, to which appellant replied "old man Porter was sick." Being asked what was the matter with him "he said he didn't know what might be the matter with him, that they sent for a doctor." A physician testified that deceased could not have walked after being shot through the body as he was.
For the appellant it was testified by his wife that he was fooling with a gun in the house and that the gun went off accidently, after which deceased walked a distance of several feet and to the point where his body was afterwards found; that the appellant immediately went to the home of his father and asked him to send for a doctor and at that time and place told his mother that the shooting was an accident. He further offered medical expert testimony to show *Page 112 that deceased, after being shot, could walk to where he was found after being shot. In rebuttal appellant's wife was contradicted by proof of a statement she had made to her sister immediately after the killing to the effect that appellant and her father had had some trouble and that appellant shot him.
Appellant did not testify.
While the evidence is not strong, we are not prepared to hold that the conclusion of guilt arrived at by the jury is not supported by the evidence. The recent powder burned hole through the screen, showing to have been fired towards the spot where appellant lay, and appellant's actions immediately after the shooting which failed to comport with his theory of an accidental killing were sufficiently cogent to support the verdict in our opinion.
The impeachment of appellant's wife as a witness is brought forward by a proper bill of exception. The record shows that this witness testified to facts and circumstances showing an accidental killing. It further shows that she went immediately after the shooting to the home of her sister a short distance away and she was asked on cross-examination by the State if she did not then and there state to her sister that Clarence (the appellant) and her father had some trouble and Clarence shot him. She denied this and proof that such a statement was made was introduced in rebuttal by the State. This statement made by her sister was in direct contradiction to the effect of her testimony given on the trial. Such testimony was held admissible on a former appeal of this case, 296 S.W. 887, where the authorities on the subject will be found collated.
Bill of exception No. 3 presents the alleged error of the Court in not permitting appellant to introduce a chart, the effect of which it is claimed was to contradict the State's witness who testified that the deceased could not have walked twenty-five or thirty feet after being shot. We are unable to appraise the merits of this bill because it does not affirmatively appear from the recitals of said bill that this would have been the effect of the chart in question, nor is it clear that such a chart being a part of the contents of a medical authority and being the ex parte statements of the author of such work would have been admissible if the above matters had been shown in the bill.
The most serious question in the case is that presented by bystander's Bill of Exception No. 1, which sets out the argument of special prosecution on the trial made to the jury in the following language: *Page 113
"It has been nearly six and one-half years since Bruce Porter met his death, and no person on earth except the defendant's mother and the defendant's wife has told you that it was an accident."
It is claimed that this was an indirect reference to the appellant's failure to testify. The language is not a direct reference to the appellant's failure to testify and in such case the implication that it was such must be a necessary one before the matter presents reversible error. If it could refer to or rest upon any fact in evidence, the statute is not violated. Howard v. State, 13 S.W.2d 80; Jones v. State,85 Tex. Crim. 538; 16 C. J., p. 903, and authorities there cited. The res gestæ statements of accused were placed before the jury to the effect that the shooting was an accident. This was the testimony of his mother. It is shown that immediately before he had met his mother and made this statement he had also met and talked to his father. His father was not used as a witness by him. It is further shown that under circumstances that would have made his statement admissible as res gestæ he talked to the witness Tone Patrick and the substance of his statements to Patrick amounted in effect to a suppression of the fact of the shooting. In the conversation with Patrick happening a few minutes after the shooting, he apparently not only failed to state that it was an accident but misstated the real facts. Appellant spoke at the trial through the mouth of another witness, namely his mother. He failed to speak through the mouths of two other witnesses who might have testified to any declaration in line with his defense for him had he made such. We think it was legitimate argument for the prosecuting attorney to refer to and to argue the unusual character of appellant's statements to witness Patrick and to adduce the inference therefrom that if his defense of accidental shooting had been bona fide, he would have made such a statement to Patrick instead of the one he did make, and that if he had done so, Patrick would have told it for him at his instance at the trial. The implication therefore that the prosecuting attorney was referring to the appellant's failure to testify at the trial is not a necessary one. It could have had for its basis his failure to speak to and through witnesses at a time when his failure to do so was clearly a circumstance against him. He spoke through neither Patrick nor his father, though both met at a time when the transaction was "talking through him" and he told neither the important fact that the shooting was an accident.
Finding no error in the record, the judgment is affirmed.
Affirmed. *Page 114
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.