The record so abounds in facts showing not only the death of deceased but that she died from the criminal agency of another, that we did not deem it necessary, in the original opinion, to go into that phase of the case to any length. The pool of blood in the kitchen in which were strands of black hair like the hair of deceased, the trail of blood from the kitchen to the bed on which her body lay, the bruises on her body, the "squshy" temple, the black and blue neck, the bloody chair, the bent iron pipe, the bloody hammer, the bloody pants, — all speak so convincingly of a death caused by violence that we did not suppose any serious contention would be made on proof of the corpus delicti.
So also of our decision on the question of the failure of the court to charge on circumstantial evidence. We have often said that if the facts proven be in such close juxtaposition to the main fact as to be equivalent to direct testimony, a charge on circumstantial evidence is not necessary. Branch's Annotated P. C., p. 1040. The main fact in this case is that the accused did the killing. If then the State has shown that he did such killing by testimony so strong as to be equally as clear and convincing as positive testimony on the point, then there was no need for a charge on circumstantial evidence. Also, under all the authorities, if there be his confession of the main fact, then it was not necessary to give such charge. What have we here? A young woman apparently well and strong, living with her two little children, one three years old, the other six months old, on a farm belonging to appellant. He had moved her there and, according to the testimony, he had tried in various ways to get her moved away; had said she had to get off on good terms or bad ones; that she had to go if he had to go down there, jump on her and throw her out; had tried to get a witness to gather some of his friends and run her off the place for him; had been overheard to say to his wife, "I will get her off if I have to kill her and drag her off." The woman's body was found on a bed in her house on Sunday, her half-starved babies crying and crawling around the yard. The body's condition has been referred to. Her skirt was up and flies and worms were everywhere in exposed parts of the body. The fact of her death became at once noised abroad; her brothers, relatives and officers began investigating. Appellant was suspected According to the testimony he was the last person seen by any witness *Page 106 with deceased while she was alive. This was on Thursday night before her body was found Sunday. He was at her house where she was killed. Friday after that Thursday appellant, speaking of deceased, said "She don't need anything but a graveyard." The Monday following appellant and his brother were at Cleveland where the brother of deceased lived. The brother of deceased was named Burkitt. Appellant's brother asked him on that day if he had seen the Burkitts. They started down to where the Burkitts were. Appellant asked his brother if he had his pistol and received a negative answer, but further said he had his, and might have to kill some more of those folks, and further said in this connection, "I killed that G_d d___d woman and you keep your mouth shut about it," at the same time putting his hand to his hip pocket. No other woman had recently died in that neighborhood and none had been killed. If these facts be not enough to make clear, with as much force as would have resulted from the statement of an eyewitness that appellant had killed said woman, then we further observe that he was arrested for this killing a few days after the body was discovered, and when he made bond he went down to the home of a woman whom he asked if she knew anything good for him and upon her reply that she did not, he said that he did not know that he killed that woman, — that he just intended to give her a light lick and that he hit her too hard. It would be impossible to conceive any other result from such statements of appellant than that he referred to deceased, and we are confirmed in our belief that to hold these facts not sufficiently strong and not to put appellant in such juxtaposition to the main fact as to obviate the necessity for a charge on circumstantial evidence, would be to grasp at the shadow and neglect the substance.
Appellant's position that when the allegation and proof is of a death by means unknown, there must be necessity be a charge on circumstantial evidence, is manifestly unsound. If A's dead and mutilated body be found clearly evidencing a death by external force, and B admit that he killed A, this would support the conviction of B, although his confession did not name the instrument used and though it be alleged in the indictment that the killing was by some means unknown to the grand jury. Again, A at a distance sees B assault and kill C with some weapon not distinguishable. So that of necessity the means or instrument must be alleged in the indictment and testified to as unknown, but this would not require a charge on circumstantial evidence.
Appellant urges that we did not consider his motion for new trial in which he set up newly discovered evidence. The matter was not brought before us so that we could consider it. Appellant attached *Page 107 to his motion various affidavits and the State filed a traverse of said motion and supported same by affidavits. The order of the court on the motion recited that he heard it and the evidence offered thereon at the time it was overruled. Neither by bill of exceptions nor statement of facts is the evidence thus submitted brought before us for review. In such case we assume the correctness of the action of the court upon the motion.
Being unable to agree with the contentions made, the motion for rehearing will be overruled.
Overruled.