The offense is murder; the punishment, confinement in the penitentiary for 35 years.
George L. Lafferty v. The State, Opinion No. 16,801*, this day decided, is a companion case.
It was charged in the indictment, in substance, that Lewis Hutchison, George L. Lafferty and appellant, with malice aforethought, killed George E. Berry by striking and beating him with a piece of iron. A severance being granted, appellant was alone placed upon trial.
The testimony on the part of the State, was in substance, as follows: Deceased was sitting near his blacksmith shop. Lafferty, Hutchison and appellant walked up behind him, and appellant struck deceased on the head with a piece of iron. Lafferty *Page 530 and Hutchison were also carrying pieces of iron which they had drawn on deceased at the time appellant struck the fatal blow. Deceased was making no demonstration toward the parties at the time they attacked him.
Testifying in his own behalf, appellant denied that he struck deceased, and declared that he had no part in the transaction.
Appellant contends that the evidence is insufficient to show that deceased came to his death as a result of the wound he received. The assault was made on deceased July 28, 1933. Appellant's trial was had October 5, 1933, which was less than three months after the offense had been committed. Testifying upon the trial, deceased's son stated that his father was dead. Relative to finding his father after the assault, the witness testified: "The next time I saw my father that day he was lying on the ground at the shop that day, about five o'clock in the afternoon — I don't know exactly what time it was. He was lying on his back and his feet were about three feet from the front door of his shop. His body was lying south from the shop, lying straight. When I saw him he had been hit in the head and blood was running out of his head when I got there. I tried to get him to say something but he never did say anything. * * * I just saw a gash about two and one-half or three inches long on his head, on the right side of his head above the ear. * * * I could not tell how deep the gash was." Another witness testified: "Someone first came in the front door and said Mr. Berry (deceased) had been killed. That was from five to fifteen minutes after Mr. Hillman left the shop. * * * I did not take out my watch to see how long it was after Mr. Hillman left my shop until I found out that Mr. Berry had been fatally injured, but I can tell you about how long it was." Appellant testified that Pete Hutchison struck deceased and that he (appellant) said to Hutchison "You have killed a man." Appellant testified further: "The man (meaning deceased) was hit an unusually hard lick." The proof on the part of the State showed that appellant struck deceased with a leaf of an automobile spring, and that deceased fell to the ground in an unconscious condition with blood running from the wound in his head. If we could look to the statement of facts in Lafferty v. State, supra, we would find proof in detail that deceased's skull had been crushed by the blow and that he died from the effects of the wound in two or three days. However, we are not permitted to determine the question of the sufficiency of the evidence to show the cause of death by an examination of *Page 531 the statement of facts in the companion case. Be that as it may, the opinion is expressed that in the absence of any issue having been made on the trial as to the death or cause of death of deceased, the evidence found in the present record is sufficient on the point. Appellant relies on the cases of High v. State, 26 Texas App., 545, 10 S.W. 238, and Lucas v. State, 19 Texas App., 79. We think the holding in the case of Thompson v. State, 42 S.W. 974, in effect overruled the cases upon which appellant relies. In the case of Scott v. State,47 S.W. 531, this court, in holding the proof of the corpus delicti sufficient, used language as follows: "No question appears to have been made as to this matter on the trial of the cause. No doubt, if the question had been raised during the progress of the trial, and not apparently conceded, the proof would have been full upon this point, but it by no means follows that the proof here exhibited is not complete, establishing to the satisfaction of the jury the fact that the deceased came to his death on account of said wound." See also Vela v. State, 137 S.W. 120.
We are unable to agree with appellant's contention that the proof fails to show that the injury was inflicted with a piece of iron. Appellant bases his contention that there is a variance on the fact that some of the witnesses testified that the instrument used was a piece of steel. Other witnesses refer to it as a piece of iron. In any event, if the instrument had been described merely as a piece of steel we do not think the matter would present a variance, and pretermit further discussion of the question.
There are no bills of exception in the record. The exceptions to the court's charge do not appear to have been signed by the trial judge, and therefore cannot be considered.
A careful examination of appellant's contentions leads us to the conclusion that error is not presented.
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.
* (Reported on page 360 of this volume.)
ON MOTION FOR REHEARING