In his motion for rehearing, appellant says, in substance, that he does not controvert the correctness of the ruling of the trial court and this court of that part of the testimony of the witness Moore wherein he described what he saw from the positions he took in the jail when experimenting, but insists that a part of Moore's testimony consisted of his opinion, that is, where he used the expressions:
"I have made an examination to see whether or not a man sitting on the top bunk . . . could see, . . . and I find that you can."
"One sitting in that position could see what took place in front of the door. A person or prisoner, if they are under the bunk . . . could look out through the cell door and see one or more persons in front of the door."
These expressions of the witness Moore were in connection with his description of what he did while experimenting to determine *Page 386 whether it was possible to observe the movements of those connected with the tragedy from positions in the cell which were occupied by certain witness who were inmates of the jail at the time of the homicide and who, by their testimony, declared that they saw the appellant and others engage in the conflict which resulted in the death of the deceased.
We hardly think it sound to characterize the testimony given as opinion testimony. It but represented the result of the experiment made by the witness. It is said by a text-writer:
"When the opinion is the mere shorthand rendition or crystalization of the facts, then the opinion can be given, subject to cross-examination, as to the facts on which it is based." (Wharton's Crim. Evidence, Vol. 1, Sec. 458).
On the trial, there was evidence descriptive of the interior of the jail where the deceased was killed. There were also photographs portraying its condition. The witness Moore testified, describing in detail the various positions he took and declared that from that he could see into the corridor, and in connection therewith made also the statements quoted.
The part of the evidence complained of, we think, was but a shorthand rendition of the facts, within the meaning of that term. The precedents in this State appear to support this view. This is notably true in the case of Martin v. State,40 Tex. Crim. 666. The central controverted fact was whether the shot was fired from the window of appellant's house or from a point in his yard. Various experiments were made, and the court disposed of the legal questions presented in the following language:
"After detailing these experiments, defendant proposed to prove by him that after making these experiments the shot holes in the fence could not have been made by anyone firing from the window as testified by the State's witnesses. We believe, under the circumstances of this case, this testimony should have been admitted. It is sometimes practically impossible for the witness to detail facts and circumstances so as to convey a correct idea of the facts sought to be proved by him, — as for instance, comparing the tracks upon the ground with the shoes found upon the accused. This is denominated by the writers as being a shorthand rendering of the facts, and under such circumstances this character of testimony is generally admissible."
See also Hamilton v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 538; Crumes v. State, 28 Texas Crim. App., 516.
We are unable to concur in the view that under the record, as presented, error is shown to have been committed in receiving the testimony complained of.
The motion is overruled.
Overruled. *Page 387