Offense, murder; penalty, twenty-five years in the penitentiary.
Appellant and deceased were both negroes. The deceased lived in Newton County and the appellant in Liberty County. The motive for the killing apparently was the fact that deceased was going with the wife of appellant, from whom he was at the time separated. The killing happened about twelve o'clock on Sunday night. The deceased was apparently shot from ambush a few feet from the house of Henry McCarter. The imprint of a shoe track was found on the ground at the scene of the killing: A witness testified that appellant's shoes would make that same kind of a track. Both McCarter and his wife claimed to have seen and to have recognized appellant as he fled after a shot was fired near where deceased's body was afterwards found. On. Wednesday night before the killing on Sunday night McCarter testified to having seen appellant at his home with a shotgun and a rifle. Deceased was shown to have been killed with a shotgun. He was also shown to have been absent from his home in Liberty County at this time.
The sufficiency of the evidence is vigorously assailed. While the circumstances are sufficient to throw some doubt on the ability of McCarter and his wife to recognize and identify appellant on the night of the killing, as a whole they presented a jury question which has been resolved against appellant and we regard its finding as binding upon us.
Only one bill of exception appears in the record. Objection was made to the following statement by witness McCarter:
"I saw the Defendant on Wednesday before the killing on Sunday night out on the yard; he came there with two guns — One a winchester and One a shotgun. He told me 'I am going to do something with this, and if you tell it I am going to kill you.' "
Appellant objected to this testimony because the State failed to connect the deceased with the threat. Obviously it was admissible for the State to prove that appellant was at the scene of the killing with a shotgun. The objection went to the admissibility of this as *Page 630 well as the alleged threat. Conceding that the latter part of the statement amounted to a threat about which it is not necessary to express an opinion, its admissibility could not be reached by a blanket objection which sought to also exclude testimony clearly admissible. The alleged inadmissible portion should have been directly challenged and singled out from the admissible portions. Branch's P. C., Sec. 211; Payton v. State, 35 Tex.Crim. Rep.; Aven v. State, 177 S.W. 82.
Finding no error in the record, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.