The state has filed a motion for rehearing to which is attached the affidavits of jurors, the effect of which, if considered, would be to contradict a recital of fact in a bill of exception that certain statements made by the trial judge, "were made in the presence and hearing of the jury." These affidavits have no place in the record and will not be considered. If the state desired to make an issue on whether or not the jury had heard the judge's remark it should have been done in the trial court on the hearing of motion for new trial; the evidence regarding the matter might then have been brought forward in the record for our proper consideration.
The state further requests that if our original opinion be adhered to that in view of another trial we discuss the matter presented in bills of exception numbers seven and eight. The bills are not elaborated to any extent, but examining them in the light of all the evidence it occurs to us that admitting testimony of the sheriff — which in effect was the expression of his opinion as to the relative position of the parties at the time of the homicide, — was of doubtful propriety.
Deceased was shot with a shotgun, and appellant received a pistol wound during the difficulty. It was the theory of the state that appellant and his two brothers were all parties to the shooting; that one of the brothers fired at deceased from a position some distance removed from appellant; and that appellant fired one of the shots, both shots taking effect. The evidence tended to support the theory of the state that appellant and his brothers had entered into a conspiracy to kill deceased, and that the two shots referred to were fired at deceased before deceased shot appellant with a pistol. Appellant testified that he and deceased did not change their positions during the time the shots were being fired, his version being that deceased fired upon him with a pistol, and that he thereupon fired three shots in rapid succession towards deceased. He said his brothers fired no shots, but that he and deceased alone were involved in an exchange of shots. Had appellant's theory been accepted, the jury would necessarily have discarded the theory of the state that appellant and his brother fired upon deceased before deceased made use of his pistol. *Page 76
The pattern of one of the shots taking effect in deceased was larger and more scattered than that of the other shot. Touching his opinion as to the relative position of the parties, as disclosed by bill of exception number eight, the sheriff testified as follows:
"I understand your question is: Can a man with a shotgun fire from the same place at the same object, they both standing there and remaining in the same place, with a shotgun, and fire two shots, and one shot cause a scattered pattern on the object and the other enters a small hole that scatters not at all and makes a hole you can put your fist in — and in answer to that I will say it could not be done."
It is doubtful if the meager predicate laid as shown in bill number eight was sufficient to admit the opinion there expressed. As disclosed by bill of exception number seven, the sheriff testified, in substance, that it was his opinion that the shots taking effect in deceased were fired from different distances.
In giving this testimony the sheriff — although not present at the homicide, — was permitted to state, in effect, the opinion that the relative position of the parties at the time of the shooting was not as testified to by appellant. Appellant's guilt or innocence depended upon the solution of the issue of self-defense. This solution against appellant was aided by the opinion of the sheriff as to the relative position of the parties at the time of the shooting. It is the rule that neither a non-expert nor an expert witness may thus be permitted to give an opinion upon the very issue the jury are impaneled to try and about which the jurors are as well qualified to speak as the witness. One of the latest cases is Boles v. State, 108 Tex.Crim. R., 299 S.W. 407, in which almost the exact question was discussed as is here presented in bill number seven. Many authorities are collated in the Boles opinion to which reference is here made without again listing them. Giving effect here to the rule controlling, we think upon another trial the opinion of the sheriff should be rejected.
We have again examined the matters upon which a reversal was predicated. We are unable to reach the conclusion that our original disposition of the case was incorrect.
The motion for rehearing is overruled.
Overruled. *Page 77