In appellant's motion for rehearing is found the following statement:
"It is not appellant's contention that the testimony in regard to the size and character and sawed condition of the ball taken from the deceased was such error as required a reversal of this case, * * * but it was the contention of the appellant in the lower court and is his contention now that the facts of this case raise no issue that would justify the state in taking up the body of the deceased, taking the bullet therefrom and not only permit the witness to testify before the jury as to the size and sawed condition of the bullet, but permit them to go further and exhibit to the jury and let the jury handle, examine and look at the bullet for themselves."
We do not care to discuss again the question of the exhuming of the body of deceased and securing therefrom the bullet; that matter seems sufficiently disposed of in our original opinion; neither do we attach any importance to the fact that the proof as to the bullet was made by the state after both the state and appellant had rested their case. The strict rule regarding rebuttal testimony is not enforced in this state in the trial of criminal cases. If evidence regarding this bullet would have been admissible if offered by the state in developing its case in chief the order in which it was introduced does not alter the question. However, appellant contends that the evidence was inadmissible because it elucidated no issue in the case. The principle announced in Underhill's Crim. Ev., 3d Ed., sec. 494, and copied in our original opinion has been given general application in our court as illustrated by the cases cited in said opinion. As we understand it the state, unless under most unusual circumstances, may in making out its case introduce the weapons with which the crime is committed and the bullets found in deceased's body. Questions similar to that here raised by appellant were discussed in Simpson *Page 15 v. State, 97 Tex.Crim. R., 263 S.W. 273; Smith v. State,104 Tex. Crim. 567, 285 S.W. 1094; Claxton v. State, 109 Tex. Crim. 345. We see nothing in the present case to take it out of the general rule.
It is appellant's further contention that even if the evidence regarding the bullet and the bullet itself was admissible, it was error to permit the jury to handle and examine the bullet. If it was properly admitted in evidence the question last raised seems not difficult to determine. In Smith v. State, 90 Tex.Crim. R., this court said:
"After retirement the jury requested the pistol which had been introduced in evidence for their examination in their deliberations upon the case. Appellant objected to this as shown by his bill No. 23. The bill does not undertake to show that the pistol was used by the jury for an improper purpose, or that any additional fact was discovered by them upon its examination. Unless it is made to appear that the articles which are in evidence, and taken to the jury room, were used by the jury in any different manner than accorded with the testimony, or that some new fact hurtful to appellant was thereby discovered, the matter will not be revised on appeal. Such has been the holding of this court, even when the bloody clothing of deceased was properly in evidence, and taken by the jury to their room. Bell v. State, 32 Tex.Crim. Rep.; Spencer v. State, 34 Tex.Crim. Rep.; Chalk v. State,35 Tex. Crim. 116; Grayson v. State, 40 Tex. Crim. 573; Webb v. State, 69 Tex.Crim. Rep., 154 S.W. Rep. 1013."
Certainly if the jury could have taken the bullet with them in retirement and no error be thereby committed in the absence of a showing of improper use of it, there would be no basis for holding that a mere handling and examination of the bullet by the jury would present an error calling for reversal.
The motion for rehearing is overruled.
Overruled. *Page 16