The offense is murder, the penalty death.
Lloyd Elliott in February, 1930, had a bunch of hogs which ranged in and near the Sulphur River bottom in the vicinity of where appellant and his father and brother lived. Some of these hogs were missing on Friday. The deceased began a search for his missing hogs and visited at the home of one of the Goodwins. It is shown that appellant's father had killed a short time before this homicide a hog which apparently belonged to Elliott, and that appellant became afraid that Elliott was after him or his father for the theft of his hog and told his brother that he was going to kill him. Deceased failing to return home, a searching party was organized and on Monday morning his body was found in the Sulphur river, the head buried in the mud and the feet protruding from the surface of the water. An examination of the body disclosed two wounds, one in the head, apparently made by a 410 shotgun, and the other in the body, indicating a wound made by a .38 calibre rifle. The state introduced Bud Goodwin, a brother of appellant, who testified that appellant admitted to him he had killed deceased and that the two had placed the body in the river where it was subsequently found.
For himself appellant testified that Elliott came upon him unexpectedly in the woods, where he was hunting rabbits; that a difficulty ensued and that he shot in self-defense, and that afterwards, becoming uneasy, he had hidden the body in the river.
Over objection a 410 gauge shotgun and a .38 calibre rifle shown to have been in possession of appellant on the day of the homicide were introduced in evidence by the state over objection of appellant. At the time these weapons were offered the state was attempting by circumstances to connect the appellant with the crime, and they were clearly admissible for this purpose. It has been stated: "The State may introduce in evidence the weapon with which it is charged the homicide was committed, if it is properly identified as belonging to the defendant * * * or any weapon found in the possession of the accused or his criminal associates, which is similar in form and character to that which was employed." Underhill's Criminal Evidence (3d Ed.), par. 494. See, also, McBrayer v. State (Texas Crim. App.), 34 S.W. 114; Fay v. State, 52 Tex. Crim. 185,107 S.W. 55; Williams v. State, 60 Tex. Crim. 453,132 S.W. 345; Betts v. State, 60 Tex. Crim. 631,133 S.W. 251; Rodriquez v. State, 32 Tex. Crim. 259,22 S.W. 978. *Page 337
Nor do we think there was any error committed in introducing the rifle which bore on its barrel a notch recently filed and permitting state's counsel to comment thereon. It is shown that appellant was in possession of a file with this rifle on the day of the homicide. Bill of Exception No. 2 presenting this matter contains the following paragraph:
"It is certified that the State had introduced testimony showing defendant had filed the notch on the gun after he killed deceased."
If this notch was placed there by appellant in a braggadocio spirit to preserve and to illustrate his prowess as a killer, it was admissible on the question of his state of mind, this being an issue in all murder cases of the character shown here. If it had no significance, then it could not have harmed appellant.
The crime was committed on Friday. On the Monday week following, appellant was apparently placed on trial. He filed no application for change of venue. Among other things alleged in his motion for new trial was the existence of a mob spirit. Testimony was introduced on a hearing of this motion showing that appellant had been spirited from jail to jail immediately preceding his trial and that he was guarded by some twenty officers who sat around him during the trial.
If all of appellant's charges in his brief are true, this case should not have been tried in Bowie county, but as the matter is presented, we are powerless to give him any relief. The question was raised by appellant for the first time after his conviction and clearly presents nothing for review by us without usurping authority which has been withheld from us by statute. The record as a whole is perhaps sufficient to show that the unreasoning and revengeful passion of the multitude had been lighted, and that its spirit brooded over appellant's trial. This is the most ancient and the most sinister enemy of the orderly processes of the administration of justice by the courts with which governments have had to deal, and Anglo-Saxon jurisprudence is replete with safeguards against it. They have been incorporated into our Constitution and laws and the procedure for their preservation defined and these we must follow. If the law had given to the courts the right to arbitrarily grant relief to the accused in any case they saw fit, the showing made in this record would present a serious question. Such right, however, does not exist.
In addition to the above, which would present a serious question if properly presented, we note the court gave the following in charge:
"I instruct you that the witness Bud Goodwin is an accomplice.
"Now, you are instructed that you cannot convict the defendant upon the testimony of said Bud Goodwin alone, unless you first believe that his testimony is true, and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, corroborative of the testimony of said Bud Goodwin tending to connect the defendant *Page 338 with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged."
Charges in similar language have been condemned in a multitude of cases. We take the following from the case of Grant v. State, 60 Tex.Crim. Rep., 132 S.W. 350, 352, in an opinion by Judge Ramsey: "The authorities holding this charge erroneous are unbroken in this state since the case of Bell v. State, 39 Tex.Crim. Rep., 47 S.W. 1010. See Fruger v. State, 56 Tex.Crim. Rep., 120 S.W. 197; Maples v. State, 56 Tex.Crim. Rep., 119 S.W. 105; Early v. State, 56 Tex.Crim. Rep., 118 S.W. 1036; Time v. State (60 Tex.Crim. Rep.), 130 S.W. 1003; Fruger v. State, 50 Tex.Crim. Rep., 99 S.W. 1014; Jones v. State, 44 Tex.Crim. Rep., 72 S.W. 845; Garlas v. State,48 Tex. Crim. 449, 88 S.W. 345; Hart v. State,47 Tex. Crim. 156, 82 S.W. 652; Crenshaw v. State,48 Tex. Crim. 77, 85 S.W. 1147; Washington v. State,47 Tex. Crim. 131, 82 S.W. 653; Barton v. State, 49 Tex. Crim. 121,90 S.W. 877; Dixon v. State (Texas Crim. App.),90 S.W. 878; Morawitz v. State, 49 Tex.Crim. Rep.,91 S.W. 227; Reagan v. State, 49 Tex.Crim. Rep.,93 S.W. 733; Oates v. State, 48 Tex.Crim. Rep., 86 S.W. 769; Barrett v. State, 55 Tex.Crim. Rep., 115 S.W. 1187; Newman v. State, 55 Tex.Crim. Rep., 116 S.W. 577; Tate v. State, 55 Tex.Crim. Rep., 116 S.W. 604." See, also, Standfield v. State, 84 Tex.Crim. Rep., 208 S.W. 532.
Manifestly, testimony should show guilt beyond a reasonable doubt, not merely "connect" the accused with offense, as charged above. There may be facts under which such a charge would be harmless error, but we do not here pause to analyze the question, since we are inhibited by the statute from reversing unless a proper exception in writing was directed by appellant at the charge in the trial court. We find no exception of any character to the charge of the court and, therefore, unless the error is fundamental, we are powerless to grant appellant relief. It may seem harsh and unjust for a man's life to be taken whom the record shows has not been tried according to law, but such appears to be the demand of the Legislature and to it we must submit. The rule which under these circumstances refuses us the right to reverse for such an error is inexorable, and is an apt illustration of the fact that affirmances, as well as reversals, may result from technicalities.
Finding no error in the record which we are permitted to consider, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined *Page 339 by the Judges of the Court of Criminal Appeals and approved by the Court.
Hawkins, J., absent.
ON MOTION FOR REHEARING.