We add this to our original opinion. No motion for rehearing was made herein. No dissenting opinion was filed at the time the original opinion was handed down. The court stenographer has shown us a dissenting opinion which is now to be filed — some time after the court has adjourned for the term.
1. In the original opinion we gave the substance of the material incriminating evidence. Therefrom appellant and his father were shown to have been the only persons who could have found and stolen Mr. Cutts' money. His father swore positively he did not find and steal it. Hence the conclusion is inevitable that appellant, and no other, did. Besides, soon after the theft appellant alone is shown to *Page 309 have been in possession of money which suited the description of Mr. Cutts' money, at such place and under such circumstances as unquestionably showed the money he then had and part of which he then deposited in the Klondike bank, was the money stolen from Cutts, and not any other money. Appellant swore not at all, but when he was depositing $600 of that money, and kept part of it and replaced that part in his pocket, he then told Mr. Clower and Mr. Lilly upon their inquiry — so swore Mr. Clower: "Myself or Mr. Lilly asked him (defendant) where he got the money, and he said he sold out in Oklahoma, that he sold a pair of mules for $400 of the money." (Statement of facts, pp. 9-10.) After hearing said witness so testify on his examining trial, the next time appellant saw him, Mr. Clower swore: "On the defendant's last visit there we were talking about Oklahoma, about the mule proposition, and he said to me this way; he says: `You must be mistaken and have me mixed up with somebody else about saying I sold a span of mules in Oklahoma. I have never owned any mules.'" (Statement of facts, p. 14.) Again, a fair and impartial jury, after hearing all the witnesses and seeing their manner of testifying, etc., upon their solemn oaths found that from all the evidence "it was of such a conclusive nature, leading on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that appellant, and no other person, committed the offense charged, and excluded, to a moral certainty, every other reasonable hypothesis except his guilt." A learned and long experienced trial judge also upon his official oath so found. We have no particle of doubt that the evidence is amply sufficient, both as a matter of law and of fact, to sustain the jury and trial judge.
2. Appellant did not urge "various objections" to the testimony of his sister, Mrs. Alsup, when she swore: "that her husband, A.L. Alsup, was, at the time of the trial, in Oklahoma in jail." His sole objection was, as stated in his bill of exception No. 1, which alone presents the question (Record, p. 11, where his bill is copied): . . . "to which question counsel for defendant then and there objected upon the ground that the same was immaterial, irrelevant and prejudicial to the rights of the defendant."
The Supreme Court of the United States in Graves v. U.S.,150 U.S. 118, 14 Sup. Ct., 40, 37 L.Ed., 1021, says: "The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable. 1 Starlie, Ev., 54; People v. Hovey, 92 N.Y. 554, 559; Mercer v. State, 17 Texas Crim. App., 452, 467; Gordon v. People, 33 N.Y. 508."
2 Standard Ency. of Law Proc., 773, a most valuable recent work so far as completed, says: "On the trial of a criminal case, the failure to produce available witnesses, the absence of any evidence wilfully omitted by the State or the accused, or that the evidence suggests, has been wilfully omitted, forms a predicate for any legitimate deduction *Page 310 for or against the defendant, where the materiality and competency of such evidence appears. . . ." Citing many authorities sustaining this rule. Among them are cases from the United States Supreme Court, and the States of Alabama, Georgia, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, North Carolina, Oregon, Texas, and Wisconsin.
Evidently Jones' defense in Jones v. State, 7 Texas Crim. App., 103, was that he had bought the horse which he was charged with stealing. He introduced a witness who swore that he and one Scott and one Swain were present and also witnessed the horse trade. The court (p. 105) said: "The State's counsel asked the witness on cross-examination, `where were said Scott and Swain when you last heard of them?' The question was objected to, and the objection overruled, and the witness was permitted to answer the question. We are of opinion that the court did not transcend the latitude allowed in the cross-examination of a witness. Greenl. on Ev., sec. 445 et seq." Jones was convicted and his punishment assessed at ten years in the penitentiary. The case was affirmed.
Thompson was convicted for the rape of Mrs. Janssen and assessed the death penalty. He appealed. His case is reported in 11 Texas Crim. App., 51, and affirmed. One of his bills of exceptions was as follows: "The injured party, Mrs. Janssen, was allowed, over objection of defendant, to tell the jury that the old man, her father-in-law, was knocked down by defendant, — remained on the ground bleeding and helpless, — and that after the rape had been committed called to her for assistance, and that she got him into the house, — that he is now dead. Defendant, by counsel appointed by the court, objected to this for the reason that the prisoner was on trial for the rape of Mrs. Janssen, and not for the murder or assault of the old man, her said father-in-law, and that the statement was irrelevant and improper, and calculated to greatly influence the minds of the jury against defendant to his great injury," etc.
After holding all the first part of her testimony quoted admissible, as to the last sentence, this court, through Presiding Judge White, said: "So far as the additional statement by the witness of the fact that her father-in-law was dead is concerned, it was admissible as it fully accounted for the non-production of this old man, who, from the other evidence adduced, would have been beyond doubt a most important witness to corroborate in a great measure the evidence of the prosecutrix. We see no error in the admission of this testimony."
In Logan v. State, 53 S.W. Rep., 694, Logan was convicted of murder and his punishment assessed at twenty years in the penitentiary. The case was affirmed. In that case this court, through Judge Davidson said: "Appellant offered in evidence four subpoenas issued at the instance of the State for the witnesses Ragsdale, Jones and Shanks. It is stated in the bill of exceptions that these were eyewitnesses to the transaction, and the State had refused to put them on the stand at the request of appellant. The object of introducing this process was *Page 311 to show `that said witnesses had attended court, been sworn, and placed under the rule as witnesses for the State, and were not there at the instance of the defendant,' etc. We believe the appellant had the right to introduce the subpoenas, or prove by any legitimate testimony that these three witnesses had been subpoenaed by the State, and that the State had refused to place them on the witness stand."
In Jackson v. State, 56 Tex.Crim. Rep., Jackson was convicted of murder and his punishment assessed at life imprisonment. This court affirmed his case. He objected to the district attorney's argument wherein he discussed the fact that appellant did not put his father on the stand and have him testify. This court, through Judge Ramsey, said: "The argument of the district attorney was well within his rights. The failure of a defendant to place upon the witness stand one so closely related to him as his father, who is shown to be present, and who must, in the nature of things, have been advised of the circumstances of the crime charged, is a proper subject of comment and discussion. In ordinary experience the inference is fair that the testimony of the person so related would have been unfavorable. Even under our strict construction in respect to the testimony of the wife, it has been held that the failure of the defendant to use her as a witness, where the circumstances show she would have known the facts in the case, is a proper subject of comment." See also Mercer v. State, cited by the Supreme Court of the United States, supra.
"The rule, without question, is, that either side can introduce any pertinent testimony tending to prove any pertinent issue in the case, or which may do away with, or lessen the adverse effectof any proper deduction that may be made from evidence that isintroduced against him." Sweeney v. State, 65 Tex. Crim. 593, 146 S.W. Rep., 883. These five cases were cited by us in the original opinion.
Judge White, in sec. 1070 of his Ann. C.C.P., p. 676, says: "Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis — a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable."
As expressed by 11 Ency. of Ev., p. 193-4: "And conversely, evidence, the probative effect of which is to show that the adverse party's contention is probably unsound because not maintained in good faith, is held to be relevant. Thus evidence of the failure of the adverse party to call a witness who has knowledge of important facts . . . is relevant." Every other text-book writer is to the same effect, as well as every judge who has had occasion to pass on the question. To collate these authorities would be interminable.
There can be no doubt but that each and all of these cases are precisely in point, and sustain our holding, as well as all text-books do, and establish beyond controversy that said testimony was admissible, notwithstanding the dissenting opinion says: "How this character of testimony could possibly have been admitted in this case passes my comprehension; *Page 312 nor do the cases cited by the majority opinion sustain such proposition."