Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. This is the second appeal, the former opinion being reported in 3 Texas Ct. Rep., 639.
Appellant's second, third, fourth, fifth and sixth assignments of error all relate to the admission of testimony tending to prove motive, which evidence we held in the former appeal admissible for this purpose. *Page 618 However, appellant insists that the evidence is not admissible for this purpose; and if so, it should be limited in the court's charge to the question of motive. In support of his first contention he cites us to Price v. State, 3 Texas Ct. Rep., 663. A casual reading of that case will show that we held that the previous adultery of appellant with deceased's wife was not admissible, since the killing grew out of a separate and distinct and altogether independent motive from that of adultery with deceased's wife. In other words, adultery had nothing whatever to do with the killing. The evidence in the record before us shows that deceased married the sister-in-law of appellant, and that appellant had had carnal intercourse with her for some time prior to the killing. The evidence for the State strongly suggests that deceased was induced by appellant to marry his sister-in-law to cover up this illicit relation of appellant with said sister-in-law; and that he subsequently formed the design of killing deceased in order to renew his illicit relations with deceased's wife. We do not deem it necessary to collate all the evidence on this matter; suffice it to say, viewing the record as a whole, we believe all the evidence was germane on the issue of motive. Its remoteness, as suggested in the former appeal, would go to its weight and not to its admissibility. In Terry v. State, 8 Texas Ct. Rep., 570, we held that, where the court charged on motive, it was reversible error because the same was a charge on the weight of the evidence, citing to support this proposition Hudson v. State, 28 Texas Crim. App., 324; Leeper Powell v. State, 29 Texas Crim. App., 63; Attaway v. State, 55 S.W. Rep., 45. The decisions make a distinction between a charge on evidence tending to show motive and a charge on evidence tending to show intent. In the latter instance, where the facts are calculated to injuriously affect appellant and likely to be used by the jury for other purposes than illustrate intent, it is necessary for the court to limit the same to that purpose. All the authorities hold that it is not necessary for the court to limit evidence going to show and make manifest motive for the crime. Where another crime forms part and parcel of the motive and res gestæ of the motive, it is not necessary to charge thereon.
Bill of exceptions number 7 complains that while the State's witness Tom Bell was on the stand, over appellant's objections he was permitted to testify that he cut a stick, and with said stick measured the foot-tracks and the boot of deceased, and a similar track leading to and from said dead body, and with such stick measured the boot which defendant was wearing the next morning after the homicide; and further stated that said measurement of said track made by him with the stick corresponded with the measurement of defendant's boot — the boot so measured being the boot defendant was wearing the next morning after the homicide. That the stick and track and boot were one and the same length. Appellant objected to this testimony on the ground that witness had stated he had said stick in his possession about the time of the first *Page 619 trial, and had given the same to the clerk of the court or some one representing the State, with the boots, pistol and pistol ball used in evidence; and because there was no effort made to find said stick and produce the same on the trial; and because the absence of the stick was not accounted for, and no effort was made to produce the same, make search for the same or account for its absence; notwithstanding the fact that defendant demanded the production of said stick; that said stick would be the best evidence as to whether or not it was the same length. The bill is approved with the explanation, "that the court privately instructed the clerk of the court to produce the stick, and the clerk reported to the court that he did not have the stick; that nothing but the boots were left in his charge, which he produced. No other effort was made to find the stick, and as a matter of fact the clerk did not search for it and did not have it in his possession. After the trial the stick was found in the sheriff's office, as the court was informed." We know of no rule of law to the effect that where one measures a track with a stick, or other substance, that he can not testify to the accuracy of the measurement without producing the stick of measurement. We do not think there was any error in the ruling of the court.
Appellant also complains that the court erred in excluding that portion of a book kept in the county clerk's office, showing the affidavit of deceased, Charley Martin, made before J.C. Killough, deputy county clerk — said affidavit being dated March 26, 1898 — for the purpose of getting a license authorizing the marriage of deceased, Charley Martin, to Sarah Slate. Said affidavit was offered in connection with the marriage license introduced in evidence, as testimony tending to show that deceased, Charley Martin, was acting voluntarily and on his own responsibility in marrying said Sarah Slate; and as tending to contradict the evidence of the State to the effect that deceased was forced by defendant to marry Sarah Slate. This bill is approved with the explanation, "that it was shown by the evidence that J.C. Killough, the deputy, who it was claimed took the affidavit, lived at Hubbard City, in Hill County, Texas; and the court stated he would grant process for Killough in behalf of defendant, and if Killough could state that deceased made the affidavit he would admit it, but no effort was made to procure Killough and no identity between deceased and the affidavit shown." Clearly, under this explanation, the evidence was not admissible.
The eighth bill of exceptions complains that the court erred in permitting Weaver, defendant's father, to testify that defendant returned to his house two or three days after he started to Vernon; that witness was getting ready for breakfast when he saw him; that it was a little while before sunup, between sunup and daylight; when witness first saw defendant there that morning he was coming from the gate to the house. Defendant stayed at witness' house until breakfast, and asked his brother Joe to take him back to Itasca; that he wanted to get there *Page 620 by train time; that he (witness) did not know where defendant stayed all night; witness did not ask him, and defendant did not say. To the introduction of this testimony defendant objected on the ground that it was introduced for the purpose of contradicting defendant as to whether or not defendant had gone the night before to the house of old man Martin, the father of deceased, Charley Martin; the contention of defendant being that the issue as to whether or not defendant went the night before to the house of old man Martin was immaterial, and a collateral issue. The statement having been drawn out on cross-examination by the State of defendant as a witness, that he (said Weaver) had not on that night gone to the house of old man Martin, but went to his father's house from Itasca on his return from Fort Worth and arrived there, at his father's house, about 12 o'clock at night, and remained at his father's until the next morning when he returned to Fort Worth. It being further contended by defendant that said evidence introduced to contradict and impeach the correctness of the statement made by defendant for the first time on cross-examination of said defendant as a witness and by the attorney for the State, was improper, incompetent, irrelevant and prejudicial to the rights of defendant. Appended to this bill is the following qualification: "That the evidence showed deceased and wife went to and lived at defendant's house for about two weeks, during which time defendant had intercourse with her; that defendant left with his family for Vernon, and old man Martin and wife say that deceased and wife came to their house to live, and that the night of the second day after defendant left he came to their house between midnight and 2 o'clock in the morning and tried to get deceased and wife away, etc. Defendant denied this, but on the contrary swore that he returned to and remained at his father's house that night. This evidence of the father was therefore admissible both as direct and as impeaching evidence. Reference is also made to the evidence of old man Martin and wife, and the evidence of Mr. Clayton on this subject in the statement of facts." By referring to the evidence of the witnesses named it appears that defendant, about the time suggested, went to the house of deceased's father, and made a futile effort to get deceased and his wife to accompany him on this trip. He went off, was gone awhile, and returned; and on his earnest insistence was permitted to see deceased and his wife. It appears that upon this second visit he renewed his entreaties to get deceased and his wife to go with him to Vernon. We do not think this testimony would be impeaching the State's own witness. It was testimony elicited by the State on legitimate cross-examination of the defendant, as indicated by the court on the question of the motive for the crime. The State had a right, as original testimony, to introduce this unusual visit of defendant to deceased's father for the purpose of showing his intense interest and suspicious regard for the wife of deceased. If it could be used as *Page 621 original evidence, then the fact that the predicate was first laid by asking defendant about the conversation would not render the testimony inadmissible. The record further shows that defendant denied many of the circumstances together with this untoward visit; and certainly it was proper for the State to introduce testimony going to discredit and disprove his testimony. To support appellant's contention he cites us to Woodward v. State, 42 Tex.Crim. Rep.. In that case we held that, where a witness on cross-examination is asked about and testifies to entirely new matter not pertinent to any matter drawn out in his examination in chief as to such new matter, he becomes the witness of the party cross-examining him, and such party can not be impeached as to such new matter. We think this is a correct rule of evidence; but we do not think it supports appellant here, since the evidence offered by the witness Martin was pertinent to a matter drawn out on the cross-examination of the defendant. Of course, it is a well established rule that a party can make an adverse witness his own, but merely because he cross-examines him as to matters that tend to discredit his examination in chief, this does not make him per se a witness of the party cross-examining him. So we think the testimony was admissible, both as direct and impeaching testimony; and if admissible as direct testimony, it was certainly not necessary for the court to limit the same to the purpose of impeachment alone.
Appellant's ninth assignment of error complains of the admission of the testimony of Taylor Clayton. What we have said in reference to the testimony of the witness Martin disposes of appellant's contention as to the testimony of witness Clayton as it grew out of the same transaction.
The eleventh bill of exceptions complains that the court permitted Tom Bell to testify for the State that he had a conversation over the telephone, and he recognized Lem Lary's voice, and that he was the party he was talking to; that said Lary was his deputy, and after his conversation with him over the phone he ordered Lary to arrest defendant. Appellant objected on the ground that it was hearsay, immaterial, irrevelant, and conveyed to the jury the suspicions or opinion of Tom Bell, sheriff, that defendant was the party who committed the homicide, and was prejudicial to the rights of the defendant. This bill is approved with this explanation: "Defendant first proved by Tom Bell, on cross-examination, that he ordered his deputy, Lem Lary, to arrest defendant before he, Bell, went on the ground. On re-examination the State proved by Bell that he ordered the arrest on information received from his said deputy, Lem Lary, over the phone; and to this defendant objected." This testimony, with practically the same qualification by the court, was passed upon by us on the former appeal of this case, and we there held there was no error in the ruling of the court.
Bill number 12 shows that B.Y. Cummings, witness for defendant, *Page 622 was introduced for the purpose of impeaching Mrs. Sarah Martin, wife of deceased, and testified: "That he was the stenographer who took down the testimony on the former trial of this cause; that Mrs. Sarah Martin then testified that after her marriage to deceased, Charley Martin, and while at Weaver's house, Weaver had intercourse with her, just the same as he did before I was married. Q. Just came and got in bed with you and your husband, your husband on one side and him on the other? A. Yes, sir. In answer to the question as to whether said witness testified before that Weaver came to her in her husband's room and woke her up, and that she got up out of their bed and went with the defendant into his and his wife's room and there had intercourse on the floor, stated that she did not so testify. On cross-examination said witness, over the objections of defendant, stated: Yes sir; at the time that she gave that testimony she had been on the stand for a long time; she was very much agitated, she had been subjected to a long and tedious examination by Mr. Tarlton, counsel for defendant; that the testimony of the witness just referred to was brought out on cross-examination." Counsel for defendant objected on the ground that said testimony was introduced solely for the purpose of showing that the witness had on a former trial testified as to the manner and circumstances she had sexual intercourse with defendant, and as contradicting witness as to the manner and circumstances under which she had had sexual intercourse with defendant as testified on this trial; that it was incompetent and improper to allow an outsider to make statements of his impression of the manner of the witness and the circumstances under which she testified. The testimony of the witness Cummings on cross-examination, as disclosed by this bill, was not improper, but was the shorthand rendering of the facts; and it certainly was germane and proper, if the main prosecuting witness, Mrs. Martin, had made a previous statement contradictory of that then being detailed by her, for the State to show the mental condition of the witness at the time of such contradictory statements being made.
Appellant also complains of the following portion of the charge of the court: "Among other defenses set up by the defendant is that of an alibi; that is, that if the offense was committed, as alleged, then the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed; and therefore was not and could not have been the person who committed the homicide. Now, although you may believe from the evidence that the deceased was unlawfully killed, as alleged, yet if the evidence or want of evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place where the homicide was committed at the time of the commission thereof, then you will give defendant the benefit of such doubt and find him not guilty." Appellant insists that this charge is erroneous, contradictory, and misleading, in that it is not left to the jury to find that Martin was killed under the *Page 623 circumstances under which the evidence before the jury shows he was killed; but the proposition in the charge is that, although you may believe from the evidence that deceased was unlawfully killed as alleged — that is by Jess Weaver — with malice aforethought, it follows that if the jury should believe he was killed by Jess Weaver, there could not arise a reasonable doubt from any portion of the testimony as to his presence at the killing. The charge when considered as a whole could not have misled the jury. The phrase "unlawfully killed as alleged" would not be construed, in connection with the remainder of the charge, as meaning that Weaver killed him, but merely means that he was unlawfully killed.
Appellant's thirteenth assignment of error is that the verdict of the jury is contrary to the law and the evidence, and without evidence to support the same. To this we can not agree. The record is replete with the most fearful motive on the part of appellant for the homicide. The facts circumstantially demonstrate his guilt with that degree of certainty which precludes every other reasonable hypothesis than that of his guilt. The record is very voluminous, and we do not deem it necessary to rehearse the facts. Suffice it to say the facts show a culpable, premeditated, lying-in-wait murder, although established by circumstantial evidence. The facts and circumstances are of that degree of cogency and consistency leading on the whole to the irresistible conclusion that defendant and no one else committed this homicide. And so believing, and finding no error in the record authorizing a reversal, the judgment is affirmed.
Affirmed.
ON REHEARING. June 1, 1904.