(dissenting).
I would reverse this conviction for the following reasons:
1. The state in making out its case in chief introduced seven closeup pictures of the bombed automobile. Three of them were clearly admissible, were not objected to, and showed the full extent of the bomb damage. The other four added nothing to the three except that they showed blood which had streamed from the seat where Mrs. Weaver had been seated and formed a great pool on the ground. Under the many holdings of this court, recently reaffirmed in Hunter v. State, 161 Texas Cr. Rep. 225, 275 S.W. 2d 803, and Davis v. State, 165 Texas Cr. Rep. 406, 308 S.W. 2d 880, blood and bloody clothing are inadmissible unless they solve some issue. These four pictures helped to solve no issue not already clearly solved by the other pictures and should have been excluded.
2. The prosecution brought into the courtroom and placed on the counsel table a jar which contained a portion of the flesh of the deceased. I can imagine nothing more inflammatory or likely, to lead the jury away from a calm and deliberate consideration of the issues before them. Would it not be human for a juror confronted with such a spectacle to say, “I had some doubt as to the guilt of the accused, but it was such a horrible crime that I could not bring myself to vote for an acquittal.” The state’s contention that the jar was not exhibited before the jury cannot be accepted. The record contains a picture taken during the trial which shows the jar clearly visible to all in the courtroom.
3. The appellant offered into evidence the tires which were shown to have been on his automobile both before and after the homicide. The state’s contention that they were not properly identified cannot, as I view the record, be sustained. In this connection, I note that there was no issue made as to the identity of the tires, and quote from 18 Texas Juris., sec. 204, pp. 331 and 332, “The prevailing view, however, is that a proffered object is not to be rejected because it is not positively identified as the thing which is shown to have been connected with the commission of the crime or to have been in the possession of the accused, the lack of positive identification affects the weight of the article or substance as evidence rather than its admissibility.” See also the recent opinion of this court in Wilson v. State, *143163 Texas Cr. Rep. 202, 289 S.W. 2d 597. The appellant offered the tires, and I agree they were admissible, to show, if the jury so found from examining them, that they could not have been driven at the high rate of speed which the time schedule in the state’s case would have required. It should be remembered that no one swore that the appellant was in San Angelo on the night in question, and the tires were admissible to support his contention that he was not. “All articles or objects which have any connection with the crime or which are found * * * in the possession of the defendant are admissible in evidence.” Branch’s Ann. P.C., 2nd Ed., Yol. 4, sec. 2233, p. 588, and cases there cited.
The state’s contention that, since there was ample oral evidence of the condition of the tires, reversible error is not reflected by the action of the court in excluding the tires themselves from the consideration of the jury should not be sustained The jury might not have believed the witnesses for the defense but might have believed their own eyes had they been given an opportunity to view the tires themselves. This is substantially the holding of this court in Langford v. State, 123 Texas Cr. Rep. 171, 58 S.W. 2d 115, and Sherwood v. State 111 Texas Cr. Rep. 453, 14 S.W. 2d 1029.
4. A Mr. McBurnett was called as a witness for the defense. At the conclusion of his testimony and as he left the witness stand, the court inquired if the witness might be excused. The district attorney indicated that he was not willing to excuse the witness and said, “We want to do some checking on him.” The only possible implication from this remark was that the district attorney thought the witness had been lying and wanted time to look into the witness’ past so that he might question him further. This amounted to nothing less than unsworn testimony of the district attorney which cast a cloud upon the credibility of the witness and was in my judgment such conduct as should call for a reversal of this case. The jury should be permitted to pass upon the credibility of the witnesses from the evidence and without any sidebar, out of the record insinuations on the part of counsel.
I respectfully dissent.