ON APPELLANT’S motion for rehearing
DAVIDSON, Judge.The general rule, long in force in this state, is that bloody clothing worn by the deceased in a homicide case, or by the injured party in an assault case, is not admissible. The admissibility of such clothing depends upon some exception to that rule. Among these exceptions is that the bloody clothing is admissible if such tends to solve some disputed issue in the case. 18 Texas Jur., Evidence — Criminal Cases, Sec. 210, pp. 339-340.
So, we have here a complaint of the admission of testimony that ordinarily, or upon its face, is not admissible. The burden was upon the state, then, to show the admissibility of the testimony as a condition precedent to its admission.
It is this distinction that differentiates the objection to the admission of the instant testimony as against those instances where the proffered testimony is ordinarily admissible but becomes inadmissible because of some specific fact or reason.
In the one, the objection casts upon the state the burden of establishing the admissibility of the evidence. In the other, the mere objection does not suffice, it being necessary that reasons or facts be claimed which, if true, would render the testimony inadmissible.
These differences are alluded to for the purpose of showing that the same definiteness in stating the reasons for the objection to the admission of evidence is not required where the testimony is, on its face, not admissible.
Of necessity, trial courts must recognize these distinctions and keep in mind that when the state seeks to introduce bloody clothing in evidence, the accused, by objecting thereto, has cast *236upon the state the burden of showing the admissibility thereof in evidence.
By force of what has been said, the conclusion is expressed that the objection appellant made to the introduction of the bloody clothing and bedclothes was sufficient to preserve the question for the review of this court.
The original opinion in this case sets out at length the facts supporting the conclusion that an issue existed which warranted the introduction of the bloody clothing.
Upon a further examination of the facts, we have reached the conclusion that we were in error in so concluding.
The issue and only issue in this case was whether the appellant intended to kill the deceased by the use of his fists, which were not such instruments as were calculated to produce death or serious bodily injury.
We are unable to ascribe any reason for admitting in evidence the bloody clothing other than to show the amount of blood that was lost as a result of the wounds inflicted. In Lacoume v. State, 65 Texas Cr. Rep. 146, 143 S.W. 626, we held that bloody clothing was not admissible for that reason.
Believing that the learned trial court fell into error in admitting in evidence the bloody clothing and bedclothes, appellant’s motion for rehearing is granted, the judgment of affirmance set aside, and the judgment of the trial court now reversed and the cause remanded.