By his motion for rehearing appellant contends that this court erred in holding that the lower court did not err in failing to limit, by his charge, the purpose for which the jury could consider the indictment of appellant, his father and others for the murder of Isaac and Samuel Truitt and the assault to kill the deceased in this case, found by the grand jury of Hood County in 1874, alleging the killing and assault to kill to have occurred in said county at said time; and the judgment of conviction and sentence of appellant's father in that county, and the testimony of the witnesses Landers, Peters and Goodlett of the conviction of appellant's father in that case, the sentence and the fact that he was hanged under said indictment, conviction and sentence, claiming that this was of such extraneous matters that it made it the imperative duty of the court to limit the effect of this testimony in this case. The original opinion states, and it was an unquestioned fact, shown on the trial of this case that the appellant himself was arrested and tried in 1907 in Hood County on said indictment found against him in 1874, for the murder of Isaac and Samuel Truitt, and that he was acquitted by the jury in that case. The record shows that no testimony whatever was introduced in this case of the facts charged in the indictment in the Hood County case in 1874.
On this point appellant cites us to the cases first collated by Judge White in his Annotated Code of Criminal Procedure, sec. 815, p. 534, to support his contention. Judge White deduces from these cases, and states this rule: "Whenever extraneous matter is admitted in evidence for a specific purpose, incidental to, but which is not admissible directly, to prove the main issue, and which might tend, if not explained, to exercise a wrong, undue or improper influence upon the jury as to the main issue, injurious and prejudicial to the rights of a party, then it becomes the imperative duty of the court, in its charge to the jury, to so limit and restrict it that such unwarranted results can not ensue; and a failure to do so will be radical and reversible error, even though the charge be not excepted to." All these decisions were rendered before the amendment of article 723 (old), Code Criminal Procedure, as it now is, and since then has existed. So that the latter clause of the rule stated by Judge White above may not apply as he himself otherwise in his Annotated Code of Criminal Procedure states.
It has always been held by this court that the proof of motive and intent on the part of an accused person is not an extraneous matter, but on the contrary, that it is to prove the main issue in the case and in such event, as stated by Presiding Judge White in Hudson v. State, 28 Texas Crim. App., 341: "Such evidence being legitimate and admissible to prove a main issue in the case, to wit, defendant's *Page 559 motive and malice in the perpetration of the murder, it was not obligatory upon the court in his charge to limit and restrict the purposes for which the evidence was admitted. The rule as to restriction or limitation does not obtain with regard to evidence proving directly the main issue involved in the trial. Davidson v. The State, 22 Texas Crim. App., 372." This rule is also expressly stated and recognized by Judge White in said section 815 above noted. A great many other cases from this court might be cited to the same effect but it is unnecessary. It is our opinion that it was impossible for the jury to be improperly influenced by this testimony complained of by appellant, so as in any way to be reversible error for the court not to have given a charge instructing the jury as to the consideration of its purpose as claimed by appellant.
It is unnecessary for us to discuss the case of Betts v. State, recently decided, but not yet reported, to show that it is wholly inapplicable to this case.
Appellant's next contention is that this court erred in holding that the lower court did not err in not submitting in his main charge that if Mit Graves, or any other person other than the appellant killed the deceased, to find the appellant not guilty. By his motion for rehearing he requests this court to state in its opinion all of the evidence on this subject which might tend to show that his complaint is correct.
The statement of facts in this case is quite lengthy. It takes 130 full typewritten pages to record and show to this court the evidence introduced on the trial. It is true that perhaps a large proportion of it would be unnecessary to give on this subject, still it would require a considerably large portion of it to attempt under what appellant contends is pertinent on this question. We can see no sufficient reason that it would elucidate in this case, or that it would be of any benefit in any other, hence, we can not, in this opinion, undertake to give all of this testimony. We have read and studied this evidence, the whole of it, with a great deal of care and gone over the portions of it on this point time and again, and from the whole record, it is our opinion that appellant's contention presents no reversible error in this case.
The rule on this subject is well established and adhered to in this State. Bishop v. State, 43 Tex. 390; Davis v. State, 28 Texas Crim. App., 542; Maxwell v. State, 31 Tex. Crim. 119; Cannon v. State, 41 Tex.Crim. Rep.; Alexander v. State, 63 Tex.Crim. Rep., 138 S.W. 721, and many other decisions. In a well considered opinion by Judge Hurt in Davis v. State, supra, he said:
"Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged in order to require a charge applicable thereto? Chief Justice Roberts says that if its force is deemed to be very weak, trivial, or light, and its application *Page 560 remote, `the court is not required to give a charge upon it.' `If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.' Bishop v. The State, 43 Tex. 390. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions.
"This position is in exact harmony with the first opinion in this case, and in accord with Bishop's case, supra, and a number of cases decided by this court, notably Cunningham's case, 17 Texas Court of Appeals 89 [17 Tex. Crim. 89] Elam's case, 16 Texas Court of Appeals 34 [16 Tex. Crim. 34]; and Leeper's case, decided at the present term, but not yet reported. See also Johnson's case, 27 Tex. 758.
"Loose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely correct, whether this court has always adhered to it or not, that in the absence of exceptions to the charge of the court, for this court to reverse, the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably — not possibly— be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character no injury appears, no injury is probably — not possible, but probable — and unless this appears, there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle."
This rule was well established in this State while article 715 (old), Code Criminal Procedure, and article 723 (old), before it was amended in 1897, were in full force. Those articles, before 723 was amended in 1897, required this court to reverse whenever either, as they were then construed, an error of commission or omission was made in the charge of the lower court. Since then this court has followed, as it was bound to do, the amended article 723, which requires, "the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant."
It was not intended by this court, in the original opinion, in stating that no objection was made to the charge of the court on this ground on the trial of the case and no special charge covering the point was asked, to thereby state, or even imply that any error either of commission or omission in the charge of the court could not be raised by a motion for new trial as prescribed in said article 723, even though a special charge had not been requested on the trial nor any specific objection made at that time to the charge of the court. *Page 561 It was merely called attention to for the purpose of showing the state of the record and the attitude of the case when the case was tried and the charge of the court below given to the jury. Ever since the adoption of the amended article 723, this court has not looked with so much favor on the omission in the charge of the court when no exception was made thereto at the time of the trial and no special charge asked covering the point, as if that course had been pursued on the trial; but in no instance has this court failed to take full cognizance of the matter even though it is first presented in the motion for a new trial.
A careful and thorough consideration of the testimony on the trial of this case convinces us, beyond doubt, that if Mit Graves had been on trial in this case and he had been indicted instead of appellant and the same testimony then introduced as was introduced in this case, that it would have been the duty of the lower court and the lower court unquestionably would have charged peremptorily to find Mit Graves not guilty.
In submitting the case to the jury for its finding, the court charged: "Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Bill Mitchell, did, in Shelby County, State of Texas, on or about the 20th day of July, 1886, unlawfully and with express malice shoot with a pistol and thereby kill Jas. M. Truitt, you will find him guilty of murder in the first degree and assess his punishment at death, or confinement in the penitentiary for life, in your discretion." And then charged on alibi, stating what the defense of alibi is in this language, "if the deceased was killed as alleged, the defendant was, at the time of such killing, at another and different place from that at which such killing was done and therefore was not and could not have been the person who killed the deceased, if he was killed; now, if the evidence raises in your minds a reasonable doubt as to the presence of defendant at the place where deceased was killed (if killed) at the time of such killing, you will find him not guilty."
Appellant cites us to several cases to this effect: That a party accused of crime can meet this by showing that another or others committed it. This undoubtedly is the law. He also cites us to the case of Wheeler v. State, 56 Tex.Crim. Rep.,121 S.W. 166, in which it is held that because the court did not submit a charge in that case that if another, naming him, killed the deceased, they would find the defendant not guilty, and reversed the case because that was not done. A reference, however, to that case shows, as stated in the opinion, "that under the facts of the case this charge should have been given. Appellant may be guilty, or Powledge may be guilty, or others may be guilty; and it may be stated perhaps that under the circumstances the jury might be warranted in coming to a conclusion as well against one as the other." Numerous cases are *Page 562 then cited in that opinion sustaining the holding, and appellant cites us to others to the same effect. An examination of them will show that in each one of them there was sufficient evidence, just as in the Wheeler case, supra, "that the appellant may be guilty or another may be guilty, or others may be guilty . . . and under the circumstances the jury might be warranted in coming to a conclusion as well against one as the other." No such facts appear in this case. Hence, there was no reversible error in the court not charging as now complained of by appellant.
Appellant also complains that the court committed reversible error in permitting the witness B.Y. Gibson to testify that Mrs. Truitt (Bishop), about ten days or two weeks after the killing, stated to him that she would know the man who killed her husband by the look he gave her out of his eyes. The record shows that the appellant in many ways undertook to break down the testimony of Mrs. Truitt (Bishop). Some of these were by contradicting her as to the description she gave the night of the killing of the person who killed her husband, the deceased, and by disputing her in other ways. The State then undertook, as it had the right, to support her testimony by showing that about, or soon after, the time of the killing she made similar statements to her testimony on the trial, and among them was the one complained of above. The appellant's objections to the testimony of Gibson were that such statement made ten days or two weeks subsequent to the killing was at too remote a time and especially as to the statements the contradicting witnesses, Booth and Pike, testify she made to them the night of the killing, contending that such sustaining testimony to be admissible, must be a part of the same conversation testified to by these impeaching witnesses, or in a contemporaneous one, or in a prior one nearer the transaction. Mrs. Truitt (Bishop) positively denied making the statements to the two impeaching witnesses that they testified she made to them. Unquestionably it is the law of this State and a general rule everywhere that under such circumstances, either side can support the testimony of their witness by showing that such witness had made the same or similar statements to other parties as those testified to by him. The question of when such statements to others were made need not be made at the same time or contemporaneous with the ones claimed to be made by the impeaching witness. It is true that the statement by a witness made to another might be so remote as to show that it was inadmissible, but we are of the opinion that if, as in this case, made in ten days or two weeks, when there is nothing in the bill shown to impeach the good faith of the statement at the time, or in other words, to show that the witness had been tampered with, or offered some inducement, or some occasion arose for the manufacture of such testimony. The bill shows no such thing in this case, and we are of the opinion that the admission of the testimony complained of as shown by this bill is not reversible error. The objections are *Page 563 more to the weight of the testimony than to its admissibility. We refer again to the authorities cited in the original opinion, 2 Buckler's Criminal Digest, p. 1741, sec. 573, and White's C.C.P., sec. 1119, subd. 4, p. 729.
The only other complaint by the motion for rehearing is to this sentence in the original opinion of the court: "It is clearly shown that from about noon the day the deceased was killed until an hour or two after the killing of that night that the party who did the killing was seen and clearly identified, riding on a horse of a certain description going from west toward the east where deceased lived and that he stopped parties or a party and inquired the way to Timpson, the little town where the deceased lived and where he was killed." This sentence in the original opinion is singled out from a paragraph giving substantially a brief statement of what the evidence in the case established. Appellant, by his attorneys, claims that he can not understand "how this court could so grossly and so injuriously to him misunderstand the testimony of these witnesses." The criticism of this particular sentence in the main opinion is without the slightest foundation to stand upon. We again reiterate it and state further that there is not only no reasonable doubt, but that there is not a shadow of a doubt but that the party who did the killing of the deceased in this case was the person who was seen and clearly identified, riding the horse described by the witnesses in the case going from west towards the east where the deceased lived and that he stopped parties, or a party, and inquired the way to Timpson, where the deceased lived, and where he was killed that night. No one can read the record of this testimony and come to any other conclusion, or have any shadow of doubt but that that party was the party who killed the deceased. Whether that party was the appellant, Bill Mitchell, is a different question and was so treated and so discussed in the original opinion. That the witnesses who saw this party on this horse differed as to whether that person was Bill Mitchell or not, there is no question and the sentence in the original opinion, quoted above and complained of by appellant in this case can not be tortured into a statement that Bill Mitchell, the appellant in this case, "was that person seen and clearly identified." The conclusion from the evidence was not misunderstood by this court and not incorrectly stated by this court in the original opinion.
The motion for rehearing will be overruled.
Overruled. *Page 564