Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary; hence this appeal.
Appellant complains of the action of the court in overruling his motion for a continuance on account of the absence of two witnesses, Grant Pilot and one Amey, both of whom, he says, had been subpoenaed as witnesses for him in the case. By the witness. Amey he proposed to prove that, a few days before the alleged burglary, said Amey, who was a gunsmith, had repaired the gun of appellant. It was insisted that this testimony was material in rebuttal of the State's proof that, in connection with the two parties (defendant being one of them) who were seen by the two State's witnesses in the act of burglarizing the house, defendant had a shotgun, and snapped it at the State's witnesses. Now, in response to this position, it is only necessary to state that the proof offered by the State did not show that it was the shotgun of the defendant which was used. Indeed, when we recur to the testimony on the part of the State, the witness states he was not certain whether it was a shotgun or not. So far as the State's case is concerned, if appellant had a shotgun it is not claimed that it was his own shotgun, and we fail to see how the bare circumstance that he had his rifle repaired a few days before by the gunsmith would have had any material bearing on the case. As to the witness Grant Pilot, the application states, in general terms, that Grant, the son of appellant, was at home on the night the burglary was committed. The circumstances attending this alibi testimony are not stated. The burglary occurred about 12 o'clock at night, at a little town about four miles from the defendant's house. How many rooms were in said house, whether Grant slept in the same room with appellant, or whether it is pretended that he was awake during the night, and knew that appellant was at home, is not stated. This application is not such a definite statement of facts as would authorize us to entertain the motion in this regard. The motion for a continuance, as well as the motion for a new trial, predicated on the action of the court in overruling the same, was properly overruled.
It is claimed by appellant that the court erred in permitting the State to introduce C.L. Johnson, after the defendant had closed his testimony, in rebuttal; the insistence being that the testimony of the said Johnson was original testimony, and not in rebuttal of anything that defendant proved, and should have been introduced originally by the State. It is true the testimony of Johnson was original testimony, and might very properly have been introduced by the State originally, but it was also directly in rebuttal of the defendant's theory of an alibi. His testimony tended to show that he was at another and different place at the time of the burglary. This was testimony directly in rebuttal of the fact that he was not at the place of the burglary, and, even if it had not been, under the circumstance of this case, its admission would not have been reversi-ble error. *Page 519
Appellant's third assignment of error is based on the action of the court in allowing Dr. H.M. Reeves to state that he was a physician, etc., and that on the next morning after the killing of Hamby Pilot, the brother of the defendant, he saw his dead body, and found a wound on the left side of his leg, just below the knee, the result of a gun shot. The bones had been fractured in three places, and the muscles and artery had been severed. This leg was covered by heavy drawers and pants, and the sock was drawn up over the drawers. The testimony, in connection with this, showed that said Hamby Pilot was shot in the burglarized house about 12 o'clock, and that his dead body was found the next morning about eighteen feet in the rear of the store, in a gully. Dr. Reeves was permitted to testify, on these facts, that it was possible for the deceased to have been shot in the house, as related, and to have gotten to the gully, eighteen feet in the rear of the store, and left no sign of blood along the route. We think this testimony comes within the rule of expert testimony. But, if it be conceded that it does not, we fail to see how it could have affected appellant. The witnesses for the State swear positively to the shooting of Hamby Pilot in the house, and all the testimony shows that he was found about eighteen feet in the rear of the house, in a gully, on the next morning. And this evidence is not gainsaid by any testimony for the defendant. However, whether he spilled any blood along the route we think is immaterial. The testimony tended to show that no blood was found along the route, and we are not informed as to the nature of the ground or what had been done to obliterate appearances. His clothes in the interim may have absorbed the blood. At any rate, it was competent to show that in his condition, as testified to by the surgeon, it was not an impossible feat for him to travel that distance without hav-ing left any trace of blood.
The fourth assignment of error relates to the charge of the court; and it is insisted that the court, in its charge as to how the jury were to weigh the testimony and reconcile any conflicts in the testimony of the witnesses, failed to obliterate the words, "interest in the case," in the printed charge, which has heretofore been held to be a charge upon the weight of testimony. An examination of the charge, however, shows that this clause was effectually eliminated.
Appellant insists that the court should have instructed the jury with reference to certain portions of the testimony relating to former burglaries of the house, introduced by the State; that is, that the jury should have been instructed with reference to the purpose for which they could consider such testimony. This charge was not excepted to at the time. The evidence in regard to other burglaries having been committed in the same house, prior to this instance, was admitted for the purpose of explaining the presence of prosecutor and Johnson in the house that night; that is, that they were there watching for the burglars. The evidence in regard to the other burglaries did not tend in the remotest degree to implicate any particular person. It was not objected to at the time. Under this state of facts, the only objection that appellant could *Page 520 urge would be that the jury may have convicted him of the other burglaries. This was not at all probable, because, as aforesaid, the evidence pointed to no particular individual. Again, it could not have prejudiced appellant, because the punishment was the lowest fixed by law.
There is nothing in appellant's contention that proof as to the intent with which the burglary may have been committed was wanting — that is, that it was rendered uncertain whether, in making the entry, appellant and his confederate did so for the purpose of theft or of an assault with intent to murder; and it is urged that because appellant, as soon as detected, attempted to shoot the parties who were lying in wait in the store, is strong evidence that the entry was for that purpose. The evidence presents no pretext that these parties knew that the prosecutor and the witness Johnson were in the store at that time, or that they had any malice or grudge against them. The evidence, however, does strongly tend to show that the entry was made for the purpose of theft. Hamby Pilot, brother of appellant, carried with him a pillowslip, which was found in the house after he was shot, and fled with his codefendant, appellant. They were prowling around the store, and could have had no other purpose, as indicated by the testimony in this case, than to steal from said store.
It is also insisted that a new trial should have been granted because of the misconduct of the jury. The juror Allen Alford makes an affidavit, in which he states that he did not believe the defendant guilty, "but assented to the verdict in the case because eleven of said jurors stated to me that they believed the defendant was guilty, and when I stated to them that I did not believe, from the evidence, that he was guilty, their conduct was such towards me that I believed unless I assented to the verdict which was returned I would be grossly insulted by them, and that I only assented thereto by reason of the influence of this fear." This is the language of the juror. No authority can be found for setting aside a verdict on the ground here urged. If appellant had moved to set aside the verdict on the ground that one of the jurors was not competent, for the want of capacity to serve as such, and in support of this motion introduced this affidavit, the question would have demanded more consideration. However, we would state that no fact of coercion or undue influence is stated to have been used against said juror, and the contention of appellant is without any merit.
Appellant insists that, in the face of his alibi testimony, in connection with the weakness of the State's case, he ought to have a new trial, and that this case should be reversed. We have examined the record carefully, and it occurs to us that the State's case is directly supported by the positive testimony of two eyewitnesses, and the surrounding facts strongly corroborate their evidence. The judgment is affirmed.
Affirmed
[NOTE. — Appellant's motion and amended motion for rehearing were overruled without a written opinion. — Reporter.] *Page 521