Appellant was convicted in the district court of Titus County for the offense of an accomplice to murder and his punishment assessed at confinement in the penitentiary *Page 639 for a term of six years. This is a companion case to that of Gray v. State.
The indictment contains three counts, the first count charges that Otis Ballard was killed by G. C. Gray and that prior to the commission of the offense by said Gray, appellant advised, encouraged and aided the said Gray to commit the offense. The second count charges that Ballard was killed by Burl Kemp and that the appellant was an accomplice to said murder. The third charges that Ballard was killed by George McKinley and that appellant was an accomplice to said murder. The court submitted the case alone on the first count in the indictment, to-wit, on the question as to whether appellant was an accomplice to G. C. Gray, whom said count alleged had killed said Otis Ballard.
The record contains thirty-four bills of exceptions and sixteen special charges. We do not deem it necessary to discuss each of these matters in detail and must content ourselves by saying that those not fully discussed in this opinion have had our very careful attention.
The first bill complains at the court's action in permitting the father of the deceased to testify to a conversation he had with the appellant about three weeks prior to the time Otis Ballard was killed. In this conversation, the father of the deceased testified that he asked the appellant if he and Clem Gray had been down to Jefferson to see Otis and the appellant denied that he had been down there, and deceased's father testified that he told appellant that he had a letter from his son stating that they had been down there. The bill shows that the testimony of the father of the deceased as to the contents of the letter was excluded by the court, and we are satisfied that the balance of the testimony was clearly admissible.
By a second bill of exceptions, appellant complains because the court permitted the witness Burl Kemp to testify against him; the ground of the objection being that the said Kemp had been convicted at a special term of the court in October, 1923, and had consented to take his punishment, and that he was therefore a final convict and that the court at that time, and since the adjournment of the October term, had no authority or power to set aside the judgment of conviction against the said Kemp and that the said Kemp was, therefore, disqualified to testify. This bill is qualified by the court to the effect that said Kemp had never been sentenced to the penitentiary. With this qualification, the bill is wholly without merit. A witness *Page 640 is not disqualified by reason of his conviction of a felony until sentence has been pronounced upon him and until it has become final by acceptance or by affirmance on appeal. See Section 17 Branch's P. C. for many authorities sustaining this proposition.
Bills 4, 5, 6 and 7 complain at the court's action in permitting the witness Burl Kemp to testify to various things done and said between him and George McKinley and Clem Gray prior to and immediately after Otis Ballard was killed. It was, of course, the burden of the state to show under the indictment in the case that either Clem Gray, Kemp or McKinley killed the said Otis Ballard, and this testimony complained of in these bills was strong and cogent to the effect that the killing was done by Clem Gray. The court properly limited this testimony in his charge by telling the jury that they could consider it only on the question of the guilt of the said Clem Gray. We think the testimony was clearly admissible for this purpose. For the same purpose the testimony of Latson to the effect that he saw Burl Kemp at the home of Clem Gray at about 8:30 o'clock on the night that Ballard was killed, was admissible and appellant's objections thereto are without merit.
By bills 9 and 10, appellant preserves his objections to the testimony of the witnesses Smith and Black to the effect that they examined the ground where the deceased was killed and that they saw blood and hair thereon and saw a trail along which something was dragged. The objection to this testimony is that it is inflammatory and there is no controversy or issue raised on the question of Ballard's being dead and that he came to his death by violence, and that the detailing of the evidence of brutality found by these witnesses could serve no purpose but to inflame the minds of the jury. We cannot agree with appellant's contention in this respect; it was certainly competent and proper for the state to prove the death of the deceased and to introduce any pertinent circumstance showing the manner in which he was killed. This testimony had a very strong tendency to serve this purpose and the admission of it was not error.
By the 11th bill of exception, appellant complains that the court permitted the state to introduce in evidence a part of the voluntary statement made by the appellant to Sam Williams, the County Attorney of Titus County, while the appellant was in jail at Greenville. It seems that the appellant made this voluntary statement at the above time and to the *Page 641 above-named party and that certain portions of the said statement might have been construed as exculpatory and these exculpatory portions thereof were not offered in evidence by the state but only that part of the statement which was deemed to be inculpatory was offered by the state. The bill of exceptions complaining of this matter is approved by the trial court with the explanation that the defendant had read all the statement, including that omitted by the state to the jury after the state had offered a part of it. With the explanation of the court, no error is shown. The state is not required to offer all of a confession, but may offer such part as it deems proper with the right reserved to the appellant, of course, to offer the balance of the statement, or any part thereof that is explanatory of or connected with the part offered by the state. This was the course pursued in the instant case and no error is manifested by the bill.
The 12th bill of exception complains at the court's action in permitting the state to introduce in evidence a statement signed by the defendant and sworn to before Sam Porter, Justice of the Peace. The objection to this testimony was upon the ground that the appellant was under arrest at the time the statement was made. The bill itself sets out the testimony of the Sheriff of Titus County and in this testimony he swears positively and unequivocally that the appellant was not under arrest at the time the statement was made. Under this state of the record, there is no error shown by this bill.
By bills 13, 14, 15 and 16, appellant objects to the testimony of the witnesses Gaddis, Kelly, Fielder and Poag, as to the search made for the body of the deceased after he was missing and also to the effect that a sack of clothes was found in a slough in a sack containing two big rocks and also to the effect that a place was found where clothes had been burned and a half gallon fruit jar was found laying near them. The witness Burl Kemp, the admitted accomplice in the case, had testified that these clothes were placed in the sack with these rocks and thrown into the slough and he also testified that other clothes were burned by him at the request of Clem Gray after he had poured gasoline from a one-half gallon fruit jar on them and that he had left the fruit jar at the place where the burning occurred. The testimony objected to in these bills of exceptions was clearly admissible for the purpose of corroborating the testimony of the accomplice Burl Kemp. It was also competent to prove by these witnesses that they saw *Page 642 where something had been dragged from the place where the accomplice testified that deceased was killed to the creek where his body was found. This testimony was a relevant circumstance to corroborate the accomplice Kemp, who had testified that the deceased was killed in the edge of the town of Mt. Pleasant and that his body was carried or dragged to the creek where it was afterwards found. It was also relevant and competent for the state to prove by the witness Murphy that someone came to his house the night the deceased was missing and told him he wanted to get some gasoline. This testimony was offered for the purpose of corroborating the witness Kemp to the effect that Clem Gray sent him to Murphy's house after gasoline to get them back home after they had deposited the deceased's body in the creek on the night he was killed.
Appellant also complains at the court's action in permitting the father of the deceased to testify that his son, the deceased, together with Sam Wilson, and the appellant, were charged with burglarizing Lilienstern Camack's store, and that the appellant and the witness were talking about this burglary when the witness told appellant that his sons had confessed to said burglary. The court approves this bill with the qualification that during the trial of the case and before the above testimony was offered, the witness, Dr. Ballard, father of the deceased, had testified without objection that he had a conversation with Keith and then told him that his son, Otis Ballard, had confessed to the burglary and this testimony was admitted to show motive. We think the testimony was clearly admissible for the purpose indicated by the trial court. The testimony of Gaddis to the effect that he had heard the father of the deceased tell Clem Gray that the deceased would have to stay here and take the consequences whatever they may be, was admissible for the purpose of showing motive on the part of Clem Gray to kill the deceased, as the matter mentioned concerned a burglary in which Gray and deceased were jointly indicted and to which deceased had confessed.
The appellant objected and reserved a bill of exceptions to the court's action in permitting the state to offer in evidence the voluntary statement of George McKinley, said statement being one concerning the killing of the deceased, Otis Ballard. This bill is qualified by the trial court with the explanation that the evidence was admitted, and so stated at the time, to show the guilt of George McKinley and that the attorneys did not object to it being offered for this purpose and that after the *Page 643 evidence was closed, the case was submitted on the question of defendant being an accomplice to Clem Gray alone and counsel did not then request the withdrawal of the evidence at that time. In this connection, it is pertinent to remember that the indictment charges appellant in one count with being an accomplice to George McKinley, whom the indictment charges with the murder of the said Ballard, and at the time this testimony was offered, it was pertinent for the state to prove that either McKinley, Gray or Kemp was the actual slayer of deceased, and when the court elected to submit the case alone on the count in the indictment charging Gray with the actual killing, then if the appellant desired to have this testimony withdrawn from the jury, he should have presented his motion to this effect. In addition to this it is also true that the court charged that the evidence submitted before the jury of statements signed by George McKinley was admitted for the jury's consideration in passing on the guilt of Clem Gray and the jury was instructed that they could not consider it for any other purpose except in passing upon the question of the guilt or innocence of Clem Gray. Under this condition of the record no error is shown by the admission of this statement.
Bills of exception 21 and 22 again complain at the court's action in permitting the witness to testify as to the finding of the deceased's body in Cypress Creek. What has already been said with reference to testimony of this character disposes of the contentions made by the appellant with respect to him. This testimony as well as all of the testimony of Burl Kemp as to how the killing actually occurred and as to the details of what was done with the body after the killing occurred was admissible for the purpose of enabling the state to make its case against Clem Gray as the actual slayer of the deceased.
We have carefully examined the various special charges offered by the appellant and have reached the conclusion that in every instance where said charges correctly stated the law, they are fully and pertinently covered by the court in his main charge to the jury. The court gave a correct and full charge on circumstantial evidence and on the question of accomplice and fully advised the jury as to their duty with reference to the statements made by George McKinley and Kemp, and in our opinion there is no merit in any of appellant's complaints at the court's action in refusing the special charges offered.
We have carefully considered the facts in the case, and it is our opinion that they fully warranted the jury in concluding *Page 644 that the appellant was guilty as an accomplice to Clem Gray in the commission of this atrocious crime, and finding no error in the record, it is our opinion that the judgment should be in all things 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.