Appellant was prosecuted and convicted of murder, and his punishment assessed at death.
The testimony upon which this conviction was had is wholly circumstantial, and appellant's able counsel earnestly insist that it is not of that cogency and force to exclude to a moral certainty every other reasonable hypothesis than the guilt of the defendant. We have read and re-read the record, and there is no circumstance pointing to another, but innumerable circumstances pointing to appellant as the person who killed and outraged Mrs. Seitz, and we would not feel authorized to disturb the verdict on this account.
When N.M. Gibson, a witness for the State, was testifying, appellant desired to elicit from him the fact that he and others had taken appellant from jail and carried him out on the road some distance from town, and sought to extort a confession from him as tending to show the animus of the witness toward appellant, and the interest he was taking in the case. And in another bill it is shown that while appellant was on the witness stand he desired to testify that Mr. Gibson, Mr. Nevill and others took him out of jail, put a rope around his neck, threatening to hang him, and otherwise maltreated him in an effort to extort a confession from him to show the interest, bias and prejudice of Gibson, Nevill and the others named. The court erred in not permitting appellant to testify to the facts tending to show interest, bias and prejudice of the witnesses. Mr. Nevill especially had testified to very material facts for the State. But should the refusal to admit this testimony work a reversal of the case? Mr. Nevill frankly admitted that he was assisting the sheriff in hunting up evidence in the case, thus admitting the interest he had taken and was taking in the case. He testified to finding a knife at appellant's house that was proven to be appellant's knife; he testified to finding an undershirt with blood on it; that he also found blood on the drawers. Octavia Brown, who lived with appellant, testified that the knife belonged to appellant, and the undershirt and drawers belonged to him also. That he had bathed the night of the homicide, and changed underclothing, leaving these clothes there in the house.
Appellant himself testified and admitted that the clothing found and *Page 167 the knife were his property. He said he had made the knife from an old case-knife, it having been sharpened on both sides, and filed down to a point at the end. He admitted that his undershirt had blood on it, but said in shaving he cut himself, and in wiping the blood off his face he had gotten it on his undershirt. But appellant denied that there was blood on the drawers, claiming it was rust stain. Thus, as to the material points testified to by Mr. Nevill and others, whose interest and bias appellant desire to introduce testimony to prove, appellant himself testified to the same facts, except in the instance of whether it was blood on the drawers or simply rust stain, he contending that it was rust stain. Were these witnesses whom he desired to show were taking an active interest in the prosecution, and were biased in their opinions, the only witnesses who testified to blood being upon the drawers we would hesitate long before holding that the error in excluding this testimony was immaterial. But in addition to Nevill testifying that there was blood on the drawers, Mr. Malcolm Masterson testified that he was one of the men who secured the drawers, and he testified that "he found blood stains on them, — at least two spots of blood." It is not claimed in either of the bills that Mr. Masterson was one of the men who carried appellant away from the jail or that he had any interest in the prosecution, or was in any way prejudiced against appellant. In addition to this the record discloses that these drawers, with the stain on them, were introduced in evidence, and the jury thus given an opportunity to pass on whether it was blood on the drawers or merely rust stain, as contended by appellant. Under such circumstances we do not think the ruling of the court, while erroneous, presents reversible error.
Again it is contended that the court erred in admitting the clothing in evidence. It is seen that it was material to admit the undershirt and drawers of appellant as to whether or not there was blood on them, they being shown to be appellant's beyond all doubt, and found in his house the day after the homicide, and we do not understand appellant's objection goes to the introduction of these clothes, but to the introduction of the clothing worn by deceased on the occasion when she was killed. It has always been held that it is permissible only to introduce bloody clothing when their introduction serves to illustrate some point, or solve some question, or throw light upon the matter connected with the proper solution of the case, but whenever the clothing would, in the light of the whole case, aid the jury in properly solving the issues in the case, the court should not hesitate to admit it in evidence. The knife found at appellant's house, and admitted by him to be his knife, and one he had made from a case knife, and is thus described in the record: "Blade about five inches long, about one-half or three-fourths of an inch wide at the hilt, tapering on each edge to a fine point, sharp on both sides, and having a white bone handle about four inches long."
Dr. Motherall testified: "I am a physician, and have been practicing for about ten years. I have been in Angleton since June 17th this year. I was there at the time Mrs. Seitz's body was found. I saw the body *Page 168 about sun up on the morning it was found. I saw her in the alley — she had not been moved when I got there. She was lying in the alley on the side next to the Stockwell place, near the hedge, about two feet from the hedge, her head was south and her feet north, and her clothing was all up around her knees on one side, and the right knee was drawn up, and the left was straight out, and her left arm was lying across her breast hiding the gashes, and her right hand was around by her side; and the clothing was wet from the dew, and her hair was wet from the dew or fog that formed that night, and her black skirt was white and her stockings were white, and wet; and the mucous membrane was eaten out from between her lips by the ants. I cut her clothing away under the direction of the justice of the peace; and the first I found a contusion of the forehead there, from some heavy instrument or blow; and another one over the left ear, cutting the ear, and bruising the side of the head; and the wounds from her ear down to her neck all the way down her throat indicating that she had been choked and bruised and there was a discoloration; and I found a place at the juncture of the neck and chest where she had been stamped, showing the prints of the tacks in the heel, and I found a place on her left muscle of her right arm where she had been bitten, and I found four stab wounds about the heart, in the region of the heart; on the left side; I probed those wounds — one of them went almost through the body — probably six inches or more, and the others varied in depth say up to about two and one-half inches; I found the left breast caved in by some blunt heavy instrument — a rock or something of that nature — heavy enough to break the bones. We found every sign that she had been raped; we found bruises about the genital organs, and blood in the vagina and this woman had not menstruated for about five years, because she could not, as her womb and ovaries had been removed; and that was the only way for the blood to get back up there. We found discharge there — semen — that looked like discharge from the male organs. This was a microscopic examination. We found no spermatozoa germs of the male organs, but were not experienced with the microscope and of course could be mistaken. The stab wounds in the breast indicated to have been inflicted after death on account of the absence of blood; when we turned the body over the blood ran freely and the undertaker's shoes were almost filled with blood; and before we turned her over there was very little blood on the ground. The chest wounds and the wounds on the neck each would have been sufficient to cause death. Those stab wounds appeared to have been made by a long knife with two edges. (Here witness is shown the knife in evidence.) This knife could have made these wounds. According to the depth of the wounds they were smaller at the mouth of each of them. I did not see a rock at that time, but saw one later and made an examination of it, and an instrument of that character and weight could have very easily have mashed in the breast, and the mashing would have caused death." The doctor further testified that he was positive that the lady had been raped as well as murdered. *Page 169
It is seen by this testimony that the wounds inflicted with a knife were of varying depth, one only going real deep. It was in evidence that the knife shown to be appellant's, and introduced in evidence, was fitted to the holes in the clothing of Mrs. Seitz; and the record discloses the following facts: That by inserting the knife in the rents in the clothing, it went to the hilt in the clothing where the deepest cut was in Mrs. Seitz's body, where the wounds in the body were shallow the knife would touch each side of the cut in the clothing before going to the hilt. The clothing further disclosed that the cuts had been made with a knife sharp on both sides. We think this demonstration would aid the jury materially in passing on whether or not the wounds were made in the body with this knife, and there was no error in admitting the clothing in evidence, this being a case depending wholly on circumstantial evidence. As said by this court in the Noftsinger case (7 Texas Crim. App., 301) in a case depending wholly upon circumstantial evidence the mind seeks to explore every possible source from which any light, however feeble, may be derived.
The only other bill in the record discloses that while Miss Lena Burridge was testifying, after she had stated she saw appellant the day of the homicide at Judge A.E. Masterson's home in answer to the question: "Did he do anything that attracted your attention particularly? A. I did not notice him much that day, but he always generally looked at me real hard; he watched me once until I got clean to the corner." In approving the bill the court states: "All the testimony was introduced absolutely without any objection on the part of defendant or his counsel, and as soon as the objectionable part of the evidence quoted was introduced I at once excluded it from the jury and positively instructed them not to consider it and no further instructions were asked by defendant's counsel." As thus qualified this bill presents no error. When the court voluntarily on his own motion excluded the testimony, appellant making no objection to it, the action of the court is to be commended, not criticised.
There was no objection made to the charge of the court either at the time it was given, nor in the motion for a new trial, and no special charges were requested. The above discussed bills are all the bills that appear in the record, and in our opinion neither of them present reversible error, and the judgment is therefore affirmed.
Affirmed.