Appellant was convicted of murder, and his punishment assessed at five years confinement in the State penitentiary.
The first objection is to the action of the court in permitting Andres Romero to testify. Andres Romero was indicted, charged also with the commission of the offense. The State's theory was that the fatal wound was inflicted by appellant by stabbing deceased in the back. There was evidence that Romero stabbed deceased also in the front. Romero plead guilty of assault to murder, and his punishment was assessed at two years confinement in the State penitentiary, but upon the finding and recommendation of the jury his sentence was suspended, and none has been pronounced against him. Appellant contends that this conviction rendered him incompetent as a witness. Under the first suspended sentence law passed, if it had been sustained, appellant's contention would be sound. (Snodgrass v. State,67 Tex. Crim. 615, 150 S.W. Rep., 162.) But this law was held unconstitutional on account of the other provisions, and in re-enacting the law, or passing the second suspended sentence Act, the Act so changed the wording of the law as not to render the judgment a final judgment. (Acts Thirty-third Legislature, page 8.) In section 2 it is provided that in cases where the jury recommends a suspension of the sentence, neither the verdict of conviction nor the judgment entered thereon shall become final, except under the conditions and in the manner and at the time provided by section 4. In section 4 it is provided that if thereafter sentence shall be pronounced under the conditions named in the law the judgment shall then become final, evidencing clearly the intent and purpose not to make the judgment final until sentence is pronounced.
In the next two bills objection is made to a portion of the testimony of Peter Hoag. He testified: "I am justice of the peace of Precinct No. 3 of this county. I was called upon to view the body of a dead man in May of this year; that was at Chris Schuchart's ranch. I found a dead man there in the road, whose name I think was Munoz, Petronilo Munoz. He was lying in the center of the road, I couldn't tell how far from the saloon; it was a moonlight night, but the saloon was closed when we got there, it might have been twenty or thirty yards from the saloon. I found stabs on the dead man, he was stabbed in here (indicating), he had some cuts on his arm, he had a stab on his shoulder, right shoulder, cut right below his shoulder blade; cuts were in his right arm, then he had one cut up here on his head. The stab in the back was under the right shoulder blade, that seemed to me to be a straight stab. As to *Page 240 what caused the death of the man, I guess it was the stab from behind, here (indicating), the stab wound in the shoulder, that is what caused death in my opinion. (Knife is shown witness.) I found that knife there on the ground near the body. I examined the wound here (indicating) and the one behind here (indicating), and I took that knife and probed it, to see if they were made with the same knife, and it showed it was a different knife, because the cut was very small. I took this knife and probed it and the point of this knife didn't go in very far, down about this deep (indicating)." It is objected that the statement that the wound in the back could not have been made with the knife found on the ground is but the expression of an opinion. When it is shown that he took the knife and it was so broad that it could not be made to enter the wound in the back, this is not an expression of an opinion, but is the statement of a fact; as is also the statement that the wound in the back could not have been made with this knife, for he also tried it in this wound. It is also claimed that the statement "as to what caused the man's death, I guess it was the stab from behind, — that is what caused death," is but an expression of an opinion of the witness, and should not have been admitted.
L.W. Burrell testified he was constable and went there with the justice of the peace, and saw the deceased lying there. He says: "We examined the body; took down his clothes and looked, it had a cut in there, in the right side, then he had some little stabs, cuts, slashes in the arm and some on his head; we turned him over and I found another stab in the back, and I believe that is the wound that killed him. As to my opinion as to the cause of the man's death, it was the stab in the back. I did not find any more wounds in the back. As to the size of the stab wound in the back, it was a tolerably small stab, it was a small wound but it was very deep, though. I stuck my finger in it at least that deep and pulled on it and it would suck wind, and I know by that that it must have went into the hollow; I made that experiment. I saw the judge take the knife there (in evidence) that evening in my presence and try to put it in the wound and it didn't fit. I tried it myself the next morning and it wouldn't go in." The same objection that was made to the testimony of the justice of the peace, as to which wound caused death, is also made to this witness' testimony. By reading the testimony it is seen that the wounds other than that in the back under the shoulder were shallow wounds, while the one in the back was probed and found to have penetrated the hollow, and the expression that in their opinion this wound is the one that caused the death of Munoz, is based upon facts which they detailed before the jury, — in other words, the expression of the opinion is but the crystallization of the facts — the result of the wounds found on the body — which was the fatal wound ascertained by probing and examination of the wounds, only one having been found to have entered a vital part. In the Encyclopedia of Evidence the rule is said to be, if the testimony should be held to be but the expression of the opinion of Justice Hoag and Constable Burrell: "The admissibility *Page 241 of the opinions and conclusions of non-experts rests, as has been judicially declared, upon three necessary conditions which will be considered seriatim hereinafter, as follows: (1) That the witness detail to the jury, so far as he is able, the facts and circumstances upon which his opinion is based, in order that the jury may have some basis by which to judge of the value of the opinion; (2) that the subject-matter to which the testimony relates can not be reproduced and described to the jury precisely as it appeared to the witness at the time; and (3) that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding." (Vol. 5, p. 657.) This rule has been adopted and followed by this court. Jackson v. State, 29 Texas Crim. App., 458; Powers v. State, 23 Texas Crim. App., 42; Clark v. State, 28 Texas Crim. App., 189; Thompson v. State, 19 Texas Crim. App., 593; Powdrill v. State, 62 Tex.Crim. Rep.; Bennett v. State, 39 Tex.Crim. Rep.; Martin v. State, 40 Tex. Crim. 660. When a man is killed it is always a matter of opinion or deduction as to what was the cause of his death, and it has always been held in this State, where a person views the body and examines the wound or wounds, he may give his opinion as to the kind of instrument used in making the wounds, and the cause of death. In this case we think it an immaterial question as to whether the wound in front or the wound in the back caused the death of deceased, for the evidence would clearly show that the wounds in front and those in the rear were made by persons acting together, and it would be immaterial whether the one in the front or the other one in the rear caused deceased's death. The court instructed the jury Andres Romero was an accomplice in law, and they could not convict upon his testimony alone, and it is made clear by the testimony that Romero inflicted the wounds in front with one knife, while a wound in the back was inflicted with another, and appellant is placed at deceased's side or back by the testimony.
It is shown that one juryman asked why the defendant did not testify, when he was promptly informed that he could not consider that, and there were no further remarks about the matter, and no discussion whatever relative to it. This presents no error.
The court's charge on principals is in language frequently approved by this court, where the defendant was present, and the facts and circumstances show that he participated in the unlawful acts. And the court having given appellant's special charge No. 2, there was no necessity to give the other special charge requested. In addition thereto, it would have been on the weight to have been given the testimony.
The evidence supports the verdict and the judgment is affirmed.
Affirmed.