Complaint is made of our disposition of appellant's bill of exceptions No. 7. We have had trouble in getting from this record the dates of the happenings deemed material. The killing was on January 31, 1933. A divorce suit brought by appellant against his wife was on trial. Appellant lived in Erath County, and had evidently lived there long enough to enable him to bring such suit as a resident of said county. His wife lived in Dallas County. The case had been set for trial once prior to the date of this killing. The Gambles, — deceased and his wife, — had gone from Dallas to Stephenville each time the case was set.
Appellant had formerly lived in Dallas, and while there had separated from his wife, after which he had moved to Erath County. The date of this trial of this appellant for murder was in September 1933. We find from the record that I. B. Cupp, appellant's brother and a witness in his behalf, testified to a time when appellant's wife left her children at the home of witness while she visited her brother in west Texas, and that this time was in January or February, and Mrs. Cupp was gone on said visit about five weeks. At the time this visit was made, all the parties lived in Dallas, and the date of said visit was evidently in 1932, as another brother of appellant, who also lived in Dallas and testified on this murder trial, swore that appellant moved from Dallas to Erath County *Page 17 about a year and a half ago, which would make such removal some time in the spring of 1932.
Appellant did not testify. No witness swore as a fact, — or to any state of facts that suggested, — that appellant was agitated or excited at the time of the homicide, or supporting the conclusion that he acted under the influence of sudden passion. On the contrary, Mr. Martin, who arrested him at once after the killing, testified that appellant was cool, — under the circumstances very cool. He handed Martin his pistol and said: "Here I am Blackie, do what you want to with me; I guess I have killed Gamble." This witness testified that he had observed deceased leave the court room shortly before the killing, and that appellant followed deceased out. Other witnesses said that deceased was leaving the court house going west when appellant began firing at him, — one bullet taking effect in the hand of deceased, another entering his back and inflicting the mortal wound. Appellant's brother and other defense witnesses saw the fatal difficulty, none of whom swore to any agitation or excitement on the part of appellant.
Such being the case, we are at some loss to comprehend the effort on the part of appellant in this motion to attach weight as causing excitement or passion, to the proposition that a year before the killing appellant's wife should have delivered to deceased temporary custody, during her absence from Dallas, of some policy or policies of insurance presumably made out in favor of the wife, or for the benefit of herself and children. Appellant's daughter was his only witness to the fact that there was any such delivery of any policy to deceased, or any possession on the part of deceased of such policy, — and for the purpose of impeaching said witness and shedding adverse light on the likelihood that she ever told appellant any such story, the State had the right to prove by Mrs. Gamble that she was present on the occasion testified to by the daughter, and that no mention was made of the insurance policies, and further of the fact that said policies were later delivered to her (Mrs. Gamble) by Mrs. Cupp, and that she kept them, without inspection of same, for Mrs. Cupp until the latter came home from her west Texas visit, and that she then returned them to Mrs. Cupp. It is a fundamental rule that whatever may be proved by direct testimony may also be proved by circumstantial testimony. Manifestly it would be proper for the State to prove by direct testimony, if available, that appellant's daughter did not tell him that her mother had given to deceased said policies. Beyond question facts and circumstances *Page 18 which would render improbable such telling, would be admissible. We are not able to agree with appellant in his contention that bill of exceptions No. 7 manifests any error. Barbee v. State, 58 Tex.Crim. Rep.; Proctor v. State,54 Tex. Crim. 259; Cameron v. State, 153 S.W. 867; Long v. State, 59 Tex.Crim. Rep.. We have again examined Winn v. State, 113 S.W. 918, and think it not in point.
We think bill of exceptions No. 4 was properly disposed of in our former opinion. The State did seek to show on this trial that appellant had deserted his wife and children, and had sought the attention and company of Thelma Hill, and that he murdered Gamble. If there was any impropriety in the statement of its intention so to prove, in the opening statement of the representative of the State, it was fully cared for by the court's action in instructing the jury not to consider same.
Appellant's bill of exceptions No. 8 complained of paragraph eleven of the court's charge wherein the court gave to the jury the law of murder without malice. The exception reserved to said paragraph was that it was too restrictive and imposed on appellant a greater burden than the law required. We merely said in our opinion that the exception was indefinite and not sufficiently specific. Article 1257c, Vernon's Ann. P. C., is in almost the same language as the charge given. We think the charge not subject to this exception. We think we disposed of all of appellant's complaints correctly.
Appellant again renews his complaint as to the form of verdict given by the court to the jury. We expressed our views regarding said form of verdict in our original opinion, but concluded under the facts of this case that if the form was erroneous, no injury resulted to appellant therefrom. We are forbidden by the terms of Art. 666, C. C. P., to reverse for errors in the charge which do not prejudice the rights of the accused.
The court gave a form of charge which ignored the question of murder without malice, although the court had instructed the jury fully as to their duty in case they found appellant guilty of murder without malice. Under the charge given the jury found appellant guilty as charged and fixed his punishment at five years in the penitentiary. The punishment for murder with malice is fixed at not less than two years nor more than death. The punishment for murder without malice is not less than two years nor more than five years. Since minimum is the same for both and the penalty given was within *Page 19 the comprehension of both murder with and murder without malice, we think the error in the charge harmless.
The motion for rehearing will be overruled.
Overruled.