A death penalty was assessed against appellant for the murder of O. F. Foster.
The evidence is claimed to be insufficient.
The grave penalty assessed has caused us to carefully review the statements of facts. Deceased, with a lady companion, Miss Phillips, was riding on the streets of Houston at night when a negro jumped upon the running board of their car and told them to "stick 'em up." After robbing deceased of three dollars in money, he then attempted to pull Miss Phillips from the car, whereupon deceased interfered and was hit over the head with the barrel of a pistol. The negro again attempted to pull Miss Phillips from the car and was again interfered with by deceased, who started to chase the negro away when he was shot. A cartridge of a peculiar and unusual caliber 32-765, was found at the scene of the killing. It was shown that a negro attempted to hold up a couple subsequent to the above killing when a pistol was taken from him by the assaulted party and in a scuffle a shot was fired, and that the negro ran off. An ambulance was heard to come and in a little while the appellant was seen by the assaulted party at a hospital with a bullet wound in his leg. The pistol taken from this negro was shown to have in it cartridges of the exact caliber as that found at the scene of the killing of Foster. A witness testified that this pistol was one that had belonged to appellant. Appellant orally confessed to the officers that he was near the scene of the killing, sitting on a paint bucket under some trees, and that he there lost a knife, describing it. The officers went to the point mentioned *Page 396 by appellant and there found the paint bucket and knife, and the knife was thereafter identified positively as having been one taken from witness Byrd by appellant a little while before the killing. Deceased was shown to have been shot with a small caliber bullet described by the undertaker as one that would about fit the cartridge found near the scene of the crime and a round abrasion or skin wound was found on the forehead of deceased which fit approximately the end of the gun barrel shown to have been owned by appellant and with which it is claimed he struck deceased. Appellant signed a written confession which was vigorously attacked in the trial as not having been freely and voluntarily given, which issue, however, was submitted to the jury under appropriate instructions. This confession shows the guilt of appellant. Appellant was unsatisfactorily identified by witness Miss Phillips and her testimony is under vigorous attack on this appeal. We think there is sufficient testimony to identify the appellant as the slayer of deceased without her evidence as to identity.
No brief is on file for appellant but we have carefully examined his bills of exception. Practically all of them are insufficiently drawn and present no question for review. The serious character of the penalty, however, has caused us to try to reconstruct such bills so as to reflect correctly the action of the trial judge and ascertain, if possible, whether or not such material and prejudicial matters occurred as would have likely caused an improper verdict to be rendered. None of them, in our opinion, show such error as would demand a reversal, even if we supply omitted matters so that same might be considered.
Believing that the evidence is sufficient and that no errors are shown in the record, the judgment is affirmed.
Affirmed.
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.