Appellant insists that the evidence in this case is not sufficient to support the verdict; also that the court erred in paragraph 6 of his charge; also in his charge relative to the admission of evidence of other offenses; also in rejecting testimony as to the custom of officers of Harris County to secure confessions by so-called third-degree methods. *Page 397
We have carefully reviewed the testimony in the light of the able oral presentation of this motion. We are unable to assent to the contention that the jury were without support in their verdict. By a well connected series of circumstances appellant was shown to be the perpetrator of the crime, in addition to the identification made by an eye-witness. This homicide was committed at night, and it was shown that the party who did the killing was a negro who had a handkerchief partly concealing his face and his cap pulled low on his forehead. Naturally the young woman companion of deceased who was attacked by the slayer, in conjunction with the killing, would be tremendously excited and her identification by means of the eyes, appearance, etc., should be examined with care. If the fact that appellant was the guilty party depended solely upon the identification by this young woman, we should have much hesitation in affirming the case. Aside from the confession of appellant, it was in testimony that he told the officers at the time he made his written confession, that he lost a knife near the scene of the homicide; that he had been sitting upon an overturned paint bucket, between two big trees, shortly before he lost his knife. He described the place where the paint bucket was and where he lost his knife. The officers went at once, and from his description found the place and found the overturned paint bucket and a knife. This knife was shown to be one which had been taken by appellant from another party. The bullet that inflicted the wound, and the shell, all fitted a pistol of foreign make shown to have been identical with the one belonging to appellant. There were other strong circumstances of identification. We deem the evidence sufficient.
We are not in accord with appellant's attack upon paragraph 6 of the court's charge. While said paragraph is in a sense disconnected, and would be less open to objection if it appeared in some other part of the charge, still we do not think its insertion at the place it was, and in the connection it appears, made it a charge on the weight of the testimony.
Reverting to the court's charge restricting the purpose for which evidence of other offenses was admitted, we observe that the jury were told: "And in respect thereto you are charged that such evidence was admitted solely for the purpose of or not affecting the credibility of the defendant as a witness, and you will consider the same for no other purpose, and it is for you to say whether or not such evidence does affect the credibility of the defendant as a witness." While it is customary in such charges to tell the jury that evidence of this character is *Page 398 admitted solely for the purpose of affecting, if the jury believe it does affect, the credibility of appellant as a witness, etc., we do not believe the phraseology of the charge as given such as to be capable of injury to the accused.
Bill of exceptions No. 4, taken to the rejection of testimony of witness Shelly, does not present error. From same it appears that appellant's counsel was beginning a question, which was deemed by the state incompetent, and objection was made. The trial judge stated that it was certainly a matter that would not be proper in this case. To this the appellant excepted. We have no means of knowing what question appellant's counsel proposed to ask, for same is not set out in the bill, nor is the expected answer of the witness set out.
We have tried to give each complaint of the accused that careful attention that a case involving the death penalty should receive at the hands of the courts.
Being unable to agree with any of the positions taken, the motion for rehearing will be overruled.
Overruled.