On June 26th, 1918, the judgment herein was affirmed. I entered my dissent at the time. On the motion for rehearing I have reviewed the case with decided degree of interest in its legal aspects. My views entertained at the time for not agreeing to the affirmance have been more than strengthened by a revision *Page 49 of the record and the rulings of the trial court. I do not believe that the facts, as evidenced by the record, justify the conviction. Under the Texas statute it is necessary as a prerequisite to a conviction in homicide cases that the corpusdelicti be proved. The body of the deceased must be found and identified. It must also be shown that the deceased came to death as a result of violence. It must further be shown that this violence was caused by the accused, and necessarily, in order to constitute as criminal the violence inflicted, it must be unlawful. The record is very voluminous, and the writer will not undertake to state, except in a general way, either the substance or effect of the testimony.
Appellant and deceased had been friends and sweethearts. He "had been keeping company with her" for eighteen months or more, and their relations were perhaps illicit. In November, prior to the death of the deceased the following March, appellant married another girl. Deceased at the time of her death was pregnant. It it shown that the deceased had been receiving the attention of other men as late as the night of the 10th of March before she left home on the 12th of March, the night of her supposed death. The details are unnecessary to state. On the night of the 12th of March, about 11 o'clock, the deceased left her home in company with her mother and sister, having prepared herself for a trip, stating that she was going to meet the defendant at a straw stack, which was shown to be about seven or eight hundred yards from the residence, and go with him from there to Nolanville, thence by rail to San Angelo. The mother and sister stopped or secreted themselves some thirty or forty yards distance from the haystack. The girl was shortly joined by a party who came in a buggy, whom the mother and sister of deceased indicate was the defendant. On the night after the discovery of the body of the girl in the Leon river, the mother stated she did not know who was the party meeting the deceased at the haystack, and this was in the presence of her daughter who made no statement, but believed it was defendant on account of his size and appearance. She was anticipating, however, that defendant would meet the deceased at the haystack by reason of the statement made by her deceased daughter. On March 21st the body of deceased was found in the Leon river about fifty yards above what was known as Miller Springs Bridge. This bridge spanned the Leon river. The body was removed that night and carried to undertaking parlors in Belton, and was identified as the body of Emma Staley. Before leaving home she dressed herself for the trip, making ample adjustment of her clothes, hair and paraphernalia as would be expected on the occasion of a lady going on a journey. When her body was found her hair, clothing, hat and paraphernalia were not disturbed, and in the same condition as when her mother saw her last before *Page 50 leaving the house and before reaching the haystack. The hair had not been disarranged, nor her clothing about her body. There was a veil on her head. This was not disturbed. She was dressed in a coat suit. There was bailing wire tied some inches below her knees around both legs, twisted together, either in the front or at the left side, and her top skirt was under the Wire in front and not under the wire behind. Her grip or hand-satchel and a bag of clothing were found in the river near by, having been sunk with weights attached. Two autopsies were made, one immediately after getting the body to undertaking establishment; the other on the 3rd of April. These examinations showed no violence upon the person of deceased, and no poison found in the stomach, and nothing which would indicate she came to her death by violence. The laundry bag containing her clothes was found some two weeks after her body was discovered, at the bottom of the Leon river at a point, near where the body was found. This laundry bag had two bailing wires twisted around the outside of it. The body was in a bad state of decomposition and discolored, the lips swollen, eyes and tongue slightly protuding. No examination was made of her lungs. The Miller Springs Bridge was about forty feet above the water and the water was some ten or twelve feet deep at that point. There seems to have been a sort of pool, or lake formed there by reason of a dam below. The defendant lived about six miles west of Belton, and deceased about four miles northeast of the same town. The Miller Springs Bridge was on the road leading from deceased's residence to the city of Belton. It was shown that other men kept company with deceased after defendant married in November, 1916, being with her as late as Saturday night, March 10th. Defendant was a small man weighing about 130 pounds, five feet and five inches in height, and about twenty-seven years of age. Deceased was about twenty-three years of age, a single woman and weighed about 120 pounds. So far as the record shows, the deceased was never seen alive after she left the haystack. It is also in evidence that defendant had a conversation with deceased some time in January, 1917, and another on March 10th. This latter conversation occurred in the town of Belton. What was said at these conversations is not shown. No letters were shown to have passed between the parties, but the State introduced testimony that three letters from the neighborhood where deceased resided were placed in the mail, addressed to the defendant. As far as the record shows there had been no complaint by the deceased or any member of her family against the defendant. The defendant's defense was alibi, his testimony showing he was at home, ten miles from where deceased lived, on the night of March 12th. An automobile was seen going in the direction of the haystack at about 8 o'clock on the night of March *Page 51 12th, and that at 11:45 an automobile and a buggy was seen leaving a pasture which adjoined the straw stack, going in the direction of Miller Springs Bridge, both driving slowly. That about 12 o'clock that night an automobile was seen to drive on Miller Springs Bridge opposite to where the body was found, stop, turn out the lights, remain a few minutes, and then proceed toward Belton. It is not claimed, nor does the evidence show, that defendant or any of his family owned an automobile. The defendant's brother, with whom he lived, owned a buggy. On Saturday night, March 17th, a witness some three hundred yards west of Miller Springs Bridge near the river, heard three screams of a woman as if in great distress, growing fainter each time. This witness passed an automobile at said point with the lights out about 10 o'clock on that night.
No witness testified as to the cause of the death of deceased. The writer is of opinion that the record testimony does not show she came to her death from violence. The poison theory is excluded by the testimony. The body was swollen and discolored. Some parts of it more discolored than the remaining portions of the body. The entire body, to a certain extent, was discolored. Three doctors examined the body and all testified there was no evidence of bruises or external violence of any character upon any part of the body; that there was no evidence of poison, although Dr. Robinson made an exhaustive analysis of the stomach and its contents. Dr. McIlhannon testified that from the examination of the body which he made he could not determine what was the cause of the young lady's death. Dr. Crain testified: "I could not tell if death had been produced by choking or strangulation; if you had seen the case within a few hours after the death, you could have told, but I don't think I could tell in the condition this body was in when I saw it." Dr. Robinson did not testify as to the cause of deceased's death. He testified to the condition in which he found the body some two weeks after it was found, that there were no unusual evidences about the condition of the body, unless there was possibly some small blood vessels at the base of the brain which were gorged, more than usual; but he could not say that the smaller vessels were gorged, stating: "I couldn't be positive about that because that could be postmortem changes." Dr. Crain also testified that the condition of the body in which it was found at the time he made examination could have been caused by decomposition and post-mortem changes. Dr. Robinson further stated: "I found no evidence of any blow or external violence on the skull, the brain or the scalp, and I found no poison in the stomach of any kind or character." He also testified that a choke could cause the condition in which he found the body; that a jump of thirty feet from the bridge into the water with head *Page 52 down would tend to cause the same condition, or that if immediately after death the head of the body was lower than the balance of the body, it would cause the same conditions. Dr. Crain testified also: "I could not determine from the condition of the body as to whether or not there had been any attempt to penetrate the vagina with any instrument of any kind. I could not determine that because there was so much swelling and sloughing of the mucuous membrane of the vagina that I could not say positively whether there was any tampering with the vagina or not. There was some blood on her underclothing, but whether this was bloody serum or water, I don't know. There would have to be blood to make bloody discoloration and that possibly might have been the result of decomposition. The bag of water had not been ruptured around the child and I removed the entire womb with the child in it. She was between five and six months pregnant." Her underclothing, her veil, her hair, the pins in her hair, the lace on her collar and all of her clothes were in an undisturbed condition. The undertakers and doctors who examined the body could not tell "for sure" how long the body had been in the water or dead, but probably seven to ten days. The bailing wire wrapped around her legs, as already indicated, could have been done as well by her self as by a third party. The wire was a little lower down toward the ankle on one leg than the other, and, as before stated, some of the witnesses say it was twisted in the front, and one witness testified to the effect that it was twisted on the left side. This could have been done as well by herself as by another.
In support of the insufficiency of the evidence, as viewed by the writer, he cites Lovelady v. State, 14 Texas Crim. App., 545; Robinson v. State, 16 Texas Crim. App., 347; Harris v. State, 30 Texas Crim. App., 549; Conde v. State, 35 Tex.Crim. Rep.; Follis v. State, 51 Tex.Crim. Rep.; Hunter v. State, 31 S.W. Rep., 674.
It will be noticed that this case is one of circumstantial evidence. Under this theory of the law every reasonable hypothesis must be overcome except that the deceased came to her death at the hands of the defendant. The writer is of opinion that this rule of law is not met. It is a very doubtful issue, under the testimony, as to whether the defendant was at the haystack that night or not, his evidence being of a positive nature on his alibi theory, that he was so placed in connection with the matter that he was not at the haystack or straw stack that night. The State's theory was, by the mother and sister of deceased, that he was present and left there in company with the deceased. There is also testimony that there was an automobile and buggy driven from near the haystack going in the direction of the place where the body of deceased was found. Another proposition growing out *Page 53 of this phase of the law is, that it must be shown to the exclusion of every reasonable hypothesis except that of guilt that defendant killed the girl, that is, that she came to her death by violence at his hands. There were no wounds found on the body, no fracture of the skull, no wounds of knife, pistol or gun shots, and in fact the testimony excluded, as far as human testimony could under the circumstances, the idea that she came to her death by any outside violence. She could as well have committed suicide. She may have jumped from the bridge or she may not. She may, if it was defendant with her, on account of the condition and relation of things, had a contract with him that both were to commit suicide, and she went in the river first, and he failed to carry out his part of it. But whatever may have been the conditions at the time, they are not shown except as above stated. There was evidently no struggle; could not have been any choking; there was no lick upon the head, and there was nothing to indicate any struggle of any kind, because her hair, hat, hair pins and clothing were undisturbed, and it was found she did not die from strangulation or choking. The relative strength of the parties, the man only weighing 130 pounds and the girl 120, had he undertaken to strangle her or throw her in the river, or kill her by violent methods, would leave evidence of that fact. Her clothing would have been disturbed, her hair would have been disarranged and there would have been quite a number of circumstances that would unavoidably have occurred had there been a struggle from the choking, or strangulation theory. It would be more than difficult even to imagine how the wire could be placed around her legs forcibly without disturbing her clothing. The writer does not care to pursue this phase of the case any further. Unless the State can show by some means that this girl came to her death by violence of some sort at the hands of a third party, the corpus delicti has not been shown. This may have been a homicide, or it may have been a suicide, but this testimony does not show, and leaves it in more than serious doubt. The rule of law with reference to circumstantial evidence has not been met, and a non-compliance with the rules of that phase of the law would debar a verdict of the jury of guilty, or an affirmance of this judgment as the record presents it.
There are some very interesting questions presented by bills of exception. Some of these, the writer is of opinion, form the basis of a reversal.
There are two bills of exception reserved to the ruling of the court permitting the witnesses Durrett and Smith to testify as to tracks. The bills are full and complete, and substantially show that the witness Durrett, some days after the finding of the body in the river, visited the neighborhood of the strawstack where it is supposed the defendant and the girl met on the night of the 12th *Page 54 of March. Some days after this he and the witness Smith, sheriff of Bell county, visited this place together. The bills show that they had a map of that immediate section and surveys of land; that somewhere in a southerly direction from the haystack, three or four hundred yards perhaps, which was in the direction of the Miller Springs Bridge, they found a track which they supposed to be that made by a woman. They were permitted to testify, over the objection of defendant, to so finding, it being something like two weeks or more after the track, if made by the deceased, is supposed to have been made, and there had been a rain in the meantime, and it was an isolated track. There was no evidence that deceased made the track. Their evidence confines itself to their opinion that it was a woman's track. It will be noted that the State's case was that she did not walk but rode in a buggy from the strawstack. All objections were overruled, and a shoesupposed to be one of the shoes worn by the deceased girl was handed the witnesses, and they testified they believed the trackcould have been made by such a shoe. The objections were numerous, and it is not here the purpose to deal with them in detail. I am of opinion this testimony was inadmissible. It was brought out by the State on its examination in chief, and not in contradiction of any fact offered by the defendant. This court in Mosely v. State, 67 S.W. Rep., 103, said:
"In this case there is no suggestion of any measurements or comparison of the tracks found near the place of the homicide with those of the accused. The witness had seen tracks near the place of the homicide and then saw the foot of the accused at trial and by this merely he was permitted to state his opinion as to the identity of the tracks. We do not believe this should have been permitted."
In the case of Smith v. State, 77 S.W. Rep., 453, this language was used: "The objection here charged is that the witness is not sufficiently definite as to the character of the tracks to authorize him to give an opinion as to the similarity thereof, but stated in substance that the tracks he saw on the ground were of a number eight or nine shoe; that the impression of the heel of the right foot as it appeared on the ground was that it was made by a shoe worn off on one side of the heel and that the shoes which he saw worn by appellant on that morning appeared to be a number eight or number nine and that the heel on his right shoe was worn off on one side. That the shoes also appeared to be broad across the ball, tapering towards the toe. That he did not take the measurements of the impression on the ground nor of the shoes. In this connection it may be observed that other witnesses examined the locality and state that the ground was very hard there and no tracks apparent. That a short time after the body was discovered a great number of people were there and if there had been tracks *Page 55 they would have been obliterated. Therefore looking at the witness' testimony alone we do not believe that the facts detailed by him were sufficiently definite to authorize him to give his opinion as to the similarity of the impressions on the ground with those of the shoes worn by the defendant. He was not even certain as to the number of shoe worn by the appellant, said it was an eight or nine, and the only peculiarity suggested by him is as to the heel of the shoe and the impression of the heel on the ground. It occurs to us that before a witness is authorized to give an opinion upon so vital a question as the similarity of tracks as a circumstance tending to connect appellant with the offense charged his testimony should be more certain than is manifested here."
In Tankersly v. State, 51 Tex.Crim. Rep., 101 S.W. Rep., 234, the court said:
"Before a witness can testify or give his opinion as to similarity of tracks found upon the ground and tracks made by appellant there must be some measurement taken of the tracks or some fitting into the tracks found upon the ground of the shoes of appellant, or there must be some peculiarity in the tracks found upon the ground corresponding to shoes known to belong to appellant or to tracks known or admitted to have been made by him."
In these cases the question turns upon admission of tracks supposed to have been made by the accused, wherein in the instant case it was tracks supposed to have been made by deceased. That would make no difference in the application of the principle. This was an important question. This would indicate, if this was the track made by the girl, that she was walking and going in the direction of where her body was later found. She rode in a buggy if the State's contention is true. While it might be argued that there were no other tracks there except the one supposed to have been made by the girl, and the defendant was not with her, this would not change the error in the admission of the testimony as it affected defendant. In this connection we might also cite Ballinger v. State, 144 S.W. Rep., 91. These witnesses certainly were not qualified to testify in regard to this matter. They gave the jury no criterion by testifying to the conclusion that this was a woman's track, or might be a woman's track, and especially that it was a track by deceased and that the shoe exhibited to them might fit it. Under no case and no rule of evidence that has been called to the attention of the writer could this testimony be used against the accused.
Appellant also reserved exception to the testimony of Julia Miller and Frank Tulloch in regard to letters. I am of opinion these letters, and the testimony with reference to them were not admissible. They did not undertake to testify that the girl wrote the letters, or that he received them. Quoting from the testimony of Julia Miller: "Since Willie Porter married I have seen a letter *Page 56 in the possession of Miss Emma Staley addressed to Willie Porter, Route 7, Belton, Texas, and stamped and mailed by her at Belton. That was about two months after his marriage. I don't remember whether or not his postoffice address is Belton, Route 7. I do not know anything about it. I happened to see the letter because I came over to town with her and she had it with her. We came to town on that occasion in her buggy and I saw the letter on the way to town and not before we left her home. I do not know whose handwriting it was addressed in. I am familiar with Miss Emma Staley's handwriting."
The witness Tulloch testified as follows: "It seems that prior to March 21st, there was a letter went through addressed to Will Porter, Route 7, Belton, Texas, but I do not say what box it came from nor I cannot say about when I took up that letter, but it was prior to the death of Miss Staley or before she was found in the river and within six months of that time. In taking up the mail we have our pouch before us and we take the letter from the box and we examine it to see if it is properly addressed to the town and State and stamped and we handle it in the pouch until it is returned to the office. We count the mail now, but they do not count them every month. The letter addressed to Willie Porter was left at the postoffice."
It seems that Frank Tulloch was a mail route agent or carrier. There are various and sundry objections urged to all this testimony. These will not be taken up seriatim. This testimony, in my judgment, was not admissible. In the case of Taylor v. State, 47 Tex.Crim. Rep., we find this language: "Letters not shown to have been written, introduced or received by defendant in response to those written by himself or under his authority are not admissible." This matter was not res gestae, but was hearsay, and not admissible under any known rule of law that has been called to my attention. Nowhere in the record is it shown that defendant had any knowledge of said letters, or that he ever received them. What evidence there is with reference to the reception of a letter from her by defendant is a positive denial. In the Hollingsworth case, 78 Tex.Crim. Rep., the question when letters may or may not be admitted, even where they are received or shown to have been received, was discussed fully by Judge Harper in an opinion on rehearing, in which the writer concurred, and Judge Prendergast dissented. The same question came in the second appeal of the Hollingsworth case,80 Tex. Crim. 299. It is also referred to in Hollingsworth case, 199 S.W. Rep., 626. Under these authorities the statements of these witnesses with reference to these letters were inadmissible. It was not shown even that deceased wrote the letters. The letters that Tulloch testified to were not even identified in any way as being the letters to which Julia *Page 57 Miller testified, and it is nowhere shown that appellant received these letters, and when called to his attention on the witness stand, it is shown by his testimony that he did not receive the letters and had no communication with deceased by mail, and no correspondence.
There is another important question which, it occurs to the writer, is clearly reversible. Pete Porter, brother of defendant, was used as a witness by the defendant to prove an alibi. To this the witness testified as did other witnesses. The alibi related to the disappearance of the girl, to-wit: the 12th of March. The body of the girl was found on the 21st of March. On the night of the 21st, or rather the morning of the 22nd, about 2 or 3 o'clock in the morning, the sheriff rode up to the residence of Pete Porter where defendant was living, and asked Pete Porter if that was where Mr. Sandford lived. He told him he was on the wrong road, and he then asked if Willie Porter was there, and was informed that he was. The sheriff then was permitted further to testify that Pete Porter asked him, "Is there anybody out there that will hurt Will Porter?" This was brought out by the State on cross-examination of Pete Porter. Pete Porter denied the statements. Mr. Smith, the sheriff, was then placed upon the stand and permitted, over objections of appellant, to testify that the conversation did occur as indicated. Objection was urged for various and sundry reasons. I am of opinion these objections should have been sustained. When this matter was brought out by the State it made the witness a State's witness. It was in regard to matters about which the defendant had not questioned the witness; it was new matter, and when the witness Porter denied making the statements, the matter should have ended. It was but a failure of testimony. The witness had testified nothing against the State, and to no fact that could possibly be injurious to the State; he being the State's witness, the matter should have ended, and the testimony not permitted. This was a collateral matter to the main issue, and, therefore, his answer could not be subsequently contradicted by the State. Rainey v. State, 20 Texas Crim. App., 473; Drake v. State, 29 Texas Crim. App., 265; McCray v. State, 44 S.W. Rep., 170; Hall v. State, 66 S.W. Rep., 783; Brittain v. State, 85 S.W. Rep., 278; Holland v. State,60 Tex. Crim. 117, 131 S.W. Rep., 563.
Again, there are quite a number of decisions of this court to the effect that failure to make proof in an attempt to impeach its own witness, is no ground for impeaching the witness. Bennett v. State, 24 Texas Crim. App., 73; Dunnagain v. State,38 Tex. Crim. 614; Smith v. State, 45 Tex.Crim. Rep.; Scott v. State, 52 Tex.Crim. Rep.; Wells v. State,43 Tex. Crim. 451; Owens v. State, 46 Tex.Crim. Rep.; Hanna v. *Page 58 State, 46 Tex.Crim. Rep.; Ware v. State, 49 Tex. Crim. 413; Skeen v. State, 51 Tex.Crim. Rep.; Quinn v. State, 51 Tex.Crim. Rep.; Shackelford v. State, 27 S.W. Rep., 8; Finley v. State, 47 S.W. Rep., 1015; Knight v. State, 65 S.W. Rep., 88; Gibson v. State, 29 S.W. Rep., 471; Kessinger v. State, 71 S.W. Rep., 597; Erwin v. State, 32 Tex. Crim. 519; Williford v. State, 36 Tex.Crim. Rep., 37 S.W. Rep., 761; Ozark v. State, 51 Tex.Crim. Rep., 100 S.W. Rep., 927; Johnson v. State, 36 Tex.Crim. Rep., 37 S.W. Rep., 424; Largin v. State, 37 Tex.Crim. Rep., 40 S.W. Rep., 280; Thomas v. State, 14 Texas Crim. App., 70; Goss v. State,57 Tex. Crim. 557, 124 S.W. Rep., 107. I think this is a sufficient number of cases to support the proposition above asserted without further collation. That the defendant's witness by cross-examination as to new matter becomes a State's witness in regard to that matter, is supported by a great number of authorities, and if the State fails to elicit the desired answer, it is but a mere failure to make proof, and it is error to permit the State to impeach the witness as to such new matter by proving same, by other witnesses and in this manner get hearsay testimony before the jury. Vaden v. State, 25 S.W. Rep., 777; Woodward v. State, 42 Tex.Crim. Rep., 58 S.W. Rep., 135; Owens v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 875; Paris v. State, 35 Tex.Crim. Rep., 31 S.W. Rep., 855; Casey v. State, 49 Tex.Crim. Rep., 90 S.W. Rep., 1018; Johnson v. State, 22 Texas Crim. App., 206, 2 S.W. Rep., 609; Gaines v. State, 53 S.W. Rep., 623; Maroney v. State, 95 S.W. Rep., 108; Hart v. State, 15 Texas Crim. App., 202; Shackelford v. State, 27 S.W. Rep., 8; Drake v. State, 29 Texas Crim. App., 265, 15 S.W. Rep., 725; Washington v. State, 17 Texas Crim. App., 197.
There is another proposition amply supported by numerous authorities to the effect that it is error to permit the State to impeach a witness by proof, either by admission of the witness, or evidence which lays the predicate that the witness by words or acts, or both, had expressed an opinion of defendant's guilt. Cogdell v. State, 43 Tex.Crim. Rep., 63 S.W. Rep., 645; Morton v. State, 43 Tex.Crim. Rep., 67 S.W. Rep., 115; Vann v. State, 45 Tex.Crim. Rep.. The writer deems it unnecessary to cite further authorities. The writer is of opinion this testimony was injurious to the defendant, and that the charge of the court limiting this evidence could not cure the error. It is well settled by an unbroken line of authorities in Texas that where illegal testimony is admitted, the effect of it can not be cured by the court's charge limiting its effect. It is illegal and erroneous, the effect of it cannot be so directed by the charge of the court as to make it legal. This testimony could have been admitted but for one of *Page 59 two purposes, either to discredit the witness and affect his credibility, or as a fact that this witness believed that his brother was guilty of something that was violative of the law, and in this connection the jury would infer, and doubtless did, that Pete Porter was afraid that some of the party was after Willie Porter in connection with this particular matter. It would also tend to induce the jury to believe that the witness Pete Porter had testified falsely about his testimony generally, and especially with reference to appellant's alibi on the night of March 12th. It would also tend to lead the jury to believe that the witness knew something about the murder of the deceased, and the inference would be that he received this information from the defendant, as there was no testimony showing that Pete Porter was in any way connected with the girl. This matter could not have been used by the State as original testimony, that is, the statement of the sheriff that Peter Porter made the imputed statements to him. It would not be contended for a moment that this would be original evidence, and if not, under a well settled rule the impeachment of the witness would not be admissible. The matter would be of a collateral nature. This was decided in Drake's case, 29 Texas Crim. App., 265.
There is another bill reserved to the admission of the testimony of Dr. Crain. The State was undertaking to prove as best it could that the girl came to her death by violence at the hands of somebody, and asked Dr. Crain with reference to the congestion of the brain of deceased. Dr. Crain knew nothing about it, and made a statement to the effect that he had heard that Dr. Robinson had said that there was a congestion of the brain, and if that was true, the girl could have come to her death or maybe did by strangulation or choking. Serious objection was urged to this, Dr. Robinson had not so stated, and Dr. Crain himself said Dr. Robinson had not so stated to him; that he had only heard so, and if what he had heard was true, it might be evidence of the fact that she was choked or strangled. The testimony went to the jury. Later Dr. Robinson was placed upon the stand and denied making such statement, whereupon, on motion of the defendant, the testimony was withdrawn, but it had remained for some time before the jury before this occurred. The court withdrew the testimony after Dr. Robinson made his statement, but in my judgment this did not sufficiently cure this error to render it harmless. A great number of cases are cited in the original opinion to support the ruling of the court, but upon examination the writer does not coincide with that statement on the applicability of the cited cases. For instance, the Miller case, 31 Tex. Crim. 609 is cited. The writer wrote the opinion in the Miller case. In that particular case there was some testimony adduced bearing upon a collateral matter which did not tend to connect defendant with *Page 60 the homicide. It was of a collateral nature, and its introduction did not prove or tend to prove the guilt of the defendant in killing the deceased. In the instant case the testimony of Dr. Crain was directly upon the main issue in the case, that the death of the girl occurred by violence at the hands of some one by choking or strangulation. So it was held in the Miller case, it being upon a collateral matter, it was not of sufficient importance to require a reversal, and that opinion recites in that connection that: "It is not intended here to hold that cases may not arise in which the withdrawal of testimony would not cure the error committed in admitting the same; for it may occur that such evidence was of such a prejudicial character as to so influence the jury against the defendant that he would be deprived of a fair and impartial trial." The admission of this testimony comes within that holding. The statement of Dr. Crain, if based upon facts, would tend strongly to prove the corpusdelicti, that is, that the girl came to her death by violence, by choking or strangulation as the doctor stated. It was introduced for that purpose, and was, therefore, upon one of the most crucial points in the case. The writer does not care to follow this further. This testimony is conceded to have been erroneously admitted by the trial court and withdrawn. The writer is of opinion that the withdrawal of this testimony did not cure the error. This is intensified in another way and brought to the court's attention below. This withdrawn testimony was used in argument of counsel for the State over appellants objection. This also was error.
A bill of exceptions was reserved to the ruling of the court permitting the State to prove through the mother and sister of the deceased statements made by deceased on the night she left home. The substance of it is that she, while dressing herself that night and making arrangements to leave home, said she was going to the haystack to meet the defendant to go with him from there to Nolanville, and thence to San Angelo. In this connection the mother and sister both testified that she prepared herself, arranged her hair and clothing and laundry bag which she filled with clothing, and they accompanied her near the haystack and secreted themselves to watch results, and that defendant came in a buggy and hitched it near by and met the deceased, and after talking with her a while they left, and that is the last they saw of her until after the body was taken from the Leon river on the 21st of March. All these conversations and matters occurred on the 12th of March. If these statements had been closed at the point where the women say they went with her to the haystack and saw the defendant come, there might not have been error. However, that phase of it is not the writer's purpose now to discuss, but to admit the statement that she and defendant were going to Nolanville, and thence to San Angelo, in the mind of the writer, was clearly erroneous. That a party may state his purpose in going *Page 61 to some place, or doing something, taking some action when it affects him and his purpose, is not the question here at issue. It is where a party makes a statement that affects the party about whom the statement is made in a criminal way, and in such manner as to connect him with some criminal transaction that renders it inadmissible and it may be also stated, as the writer understands the rule, that statements of the character here imputed to the deceased girl were directly and flatly contradictory of the defendant's defensive matters, to-wit: an alibi. He denied himself, in person testifying in his own behalf, that he went to the haystack or saw the girl that night, or had any agreement to meet her at the haystack, and did not meet her. He proved by other witnesses and other testimony that he was not there, and did not leave home that night, and it is conceded that his home was about ten miles from where the girl lived and where this meeting occurred at the haystack. The writer understands the rule, as before stated, to be that statements of this character cannot be introduced, when made in the absence of the defendant and not called to his attention, and about which he is ignorant, as criminative facts against him, and where they contradict his defensive theory. I understand that to be the rule under the decisions of this State, and under many of the decisions cited and relied upon in the original opinion. To take the Bazano opinion, 60 Tex.Crim. Rep., written by Judge Ramsey, as an example of the proposition that I have announced; that was a homicide case That opinion recites: "The first is that the court erred in permitting the witness, Mrs. Albert Dunlap, over the objection of defendant, to testify as to movements and actions of the deceased, Denny Harris, on the day of the homicide and prior thereto, because said actions and movements were not in the presence of appellant and there was no testimony showing that he had any knowledge of said actions and movements of Denny Harris, and appellant could not be charged with the knowledge of such movements and the causes thereof. This witness testified in substance that deceased left her house about 11:30 o'clock the morning he was killed; that he came by where she was stopping with her daughter; that he had a lead horse; that he stated he was going out to George Foreman's to take the horse there, and that he was going to the next house to get a saddle. This, it appears from the statement of facts, was objected to for the reason that appellant was not present and the movements of Harris on that day cannot be charged to him and is no evidence against him. The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations and intentions of a decedent are held not to be admissible against a defendant who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such *Page 62 acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent." The judge then says: "It can have, we think, no application to such a case as this, and the objection is wholly untenable." The writer finds no objection to that opinion under the facts stated. They were proving the acts and movements of the deceased before the homicide. It did not impugn any defensive matter set up by the defendant. As the writer recalls that case, it was one of insanity and not self-defense. That case lays down the rule, it applies here as the writer understands it, that if the statement made impugned the defensive matter of the accused, it would be inadmissible. The facts of the two cases are not alike, but the writer will readily agree to the proposition that where statements of the deceased could in no way apply to the defendant directly, or impugn his defense, or incriminate him, whether it would be admissible or not, might not be of a reversible nature. As before stated it is not the purpose of the writer here to go into a statement of those matters that did not tend to connect defendant criminally with this transaction. They might have proved that she stated she was going to the haystack, supplemented by proof that the mother and daughter went in that neighborhood, but that is not the matter here discussed. The question here is, that she stated facts that put her with the defendant in a criminal way, and may be used as very strong criminating fact against him and against his defense of alibi. It is a matter about which he had no knowledge under his theory. It was not made in his presence or hearing, nor was it ever brought to his attention. There may be possible cases, however, with which the views here expressed might not accord, but the great weight of authority, as I understand the rule, especially in Texas, would exclude the statement of the girl that she was going to meet and go with defendant to Nolanville, and thence to San Angelo. I do not care further to discuss that question. To the mind of the writer such statement was inadmissible, and upon a vital question in the case.
As I view it, the motion for rehearing ought to be granted, the affirmance set aside, and the appellant accorded a new trial in accordance with what the writer believes to be the law. The judgment ought to be reversed and the cause remanded. *Page 63