Appellant moves for rehearing on three grounds, first, that we erred in holding admissible the testimony of Mr. and Mrs. Raynes, Mr. Collins and Mr. Price. We said in our opinion this testimony was admissible as showing the condition of appellant's mind and to show motive. It seems sufficient to say that the testimony of each of said witnesses served to show that at the time of and immediately before the killing appellant was quarrelsome and made threats against people who were apparently strangers to him; that he attacked Price, and invaded the cabin in a tourist camp occupied by the Raynes, cursed and used abusive language to people who were apparently doing nothing to him, so that the occupants of said tourist cabin had to eject him and send for deceased and report the disturbance. Deceased was proprietor of said tourist camp, and came when the complaint of appellant's conduct was made to him. We still think all this admissible as showing appellant's state of mind. Art. 1257a, Vernon's Texas Statutes, 1936, provides specifically that in all prosecutions for felonious homicide the State as well as the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing * * * together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of such homicide. The matters and things referred to in said bill of exceptions occurred but a short time before the bruised and beaten body of deceased was found in a car in his tourist camp, in which car also were appellant and another. Said last named parties apparently were trying to get said car started. The acts and circumstances in the cases of Whiteside v. State, 12 S.W.2d 218; Glover v. State, 69 S.W.2d 136, and Lawrence v. State,82 S.W.2d 647, cited by appellant, were wholly different and inapplicable to the situation in the case *Page 453 before us, and lead us to think those cases not available as precedents against our conclusion in this case.
We have again reviewed the facts and adhere to our announcement that appellant admitted to Karr and Thompson that he inflicted the injuries upon deceased, — which admission removed the case from the domain of circumstantial evidence. We have been unable to find evidence of the movements or whereabouts of deceased after the Raynes sent for him and told him of the acts and conduct of appellant, — until we find in the record, — his body was in Karr's auto at the time above referred to. The facts seem to indicate that deceased was unconscious at the time he was in said car, was bloody and beaten up. He died the same night from injuries to his head, throat and chest. Witnesses who saw his body heard appellant say he inflicted the injuries. The cases cited in appellant's motion do not show a direct admission of the accused, but merely his statement of some fact from which the inference arose that he committed the crime involved.
It is also insisted that we erred in holding sufficient the verdict which found appellant guilty under counts one and two, and assessed his punishment at three years in the penitentiary. Appellant cites Jones v. State, 274 S.W. Rep., 566, and authorities there cited, including Modica v. State,94 Tex. Crim. 403, which authorities, he insists, are in point and support his contention. We think he is correct as to the Jones case, supra, but not as to the other cases cited. The rule seems well settled that if but one transaction is involved, and the offense be one which may have been committed in any one of several ways, the pleader may charge in the indictment in one count that such offense had been committed by doing this, and that, and the other, and there will be no duplicity, and need be but a verdict of guilty; or the pleader may set out in separate counts each one of the various ways in which it is claimed the offense might have been committed, in which event also there need be but a verdict of guilty. We think the opinion in the Jones case, supra, is erroneous since it is evident that but one offense was involved. See Williams v. State, 100 Tex.Crim. Rep.. The Jones case is overruled. The pleader in that case had inserted two counts in the indictment, each containing one of the elements of the offense involved. The Modica case, supra, was altogether different. In different counts in that case theft was charged from different owners, which made inapplicable the rule above approved. A verdict of conviction *Page 454 in that case meant a finding of guilt in one verdict for different crimes, and this could not stand.
In the case before us the pleader could have charged that the single offense involved was committed by striking, beating, choking and stamping, — in other words, could have included in one count, without duplicity, every act contributing to or thought to have caused death, or he could have done, — as he did, — and charged the choking in one count, the beating in another, and the stamping in another, but in our opinion a general verdict of guilty as charged in one or all would have but had the same legal effect as if there had been but one count with a verdict responsive. See Branch's Ann. P. C., Sec. 444; Byrd v. State, 90 Tex.Crim. Rep., and Strickland v. State, 116 Tex.Crim. Rep..
Appellant's motion for rehearing is overruled.
Overruled.