The appeal is from a conviction for murder with a penalty of five years confinement in the penitentiary.
The deceased, Arthus Grenlee, was struck on the head with a stick of timber one blow which resulted in his death. The assault occurred immediately after services at the church had ended and while deceased was starting away on foot. There was evidence of a difficulty between appellant and deceased about two weeks prior to the homicide in which the deceased used insulting language toward the appellant. Subsequently according to State's witness appellant expressed his intention to kill the deceased and later his intention to whip him. A witness who was acquainted with neither of the parties testified that he saw the blow struck with a stick; that the assailant passed him and hit the deceased and ran. A witness by the name of Dickens was with the deceased at the time he was killed and in his testimony on the trial identified the appellant as the assailant. The appellant denied the assault and relied on proof of alibi. A witness who was in the church with the appellant a short time before the homicide testified that the deceased was also in the house just in front of the witness and appellant, and in full view and that the appellant while looking at deceased said to the witness: "He is here isn't he." The witness was present at the previous difficulty and had conversed with appellant upon the subject subsequently and said that shortly before the remark complained of was made that appellant had said a word or two about the deceased, though the witness disclaimed recollecting the purport of the remarks. We perceive no error in the admission of the evidence. It circumstantially appeared that the reference was to the deceased and went to show, at least, that appellant took note of the presence of the deceased. Some five minutes after the blow was struck, and after the assailant *Page 601 had run away, the eyewitness Dickens was asked if he knew who struck the blow and he replied yes. Granting this to have been hearsay, we think its admission was not reversible error. The same evidence came without objection from other sources than that complained of in the bill. Moreover, the appellant in the development of his case made it pertinent as bearing upon the credibility of the witness Dickens, in that by cross-examination and impeachment the appellant undertook to show that the witness Dickens had claimed that the assailant of the deceased was Loyal Gilbert, the brother of the appellant, and in supporting the witness the State proved by several witnesses that Dickens had claimed soon after the homicide that he knew the assailant to be the appellant. A reversal is not authorized for the admission of competent, relevant evidence though it comes out of its order. Moore v. State, 7 Texas Crim. App., 14; Cox v. State, 8 Texas Crim. App., 254; Heartsfield v. State, 29 S.W. Rep., 777; Knight v. State, 64 Tex.Crim. Rep., 144 S.W. Rep., 967.
The State introduced evidence that shortly after the homicide a person ran across a certain field, and one witness who testified to this fact claimed that he had gone into the field on the night of the homicide for the purpose of responding to a call of nature and that while there he heard a party running. Subsequently evidence was introduced showing that there were tracks of a person running across the field, and the witness in testifying to the tracks also described tracks corresponding to those which would have been made by the witness last mentioned. The admissibility of the latter fact is challenged on the ground that its receipt is obnoxious to the rule which rejects testimony the sole purpose of which is to bolster the testimony of an unimpeached witness, appellant referring to Taylor v. State,79 Tex. Crim. 274, 184 S.W. Rep., 224 and Holmes v. State,52 Tex. Crim. 353, 106 S.W. Rep., 1160. The rule mentioned does not exclude cumulative evidence of a relevant fact, and in cases of this character, where the identity of the slayer is the main controverted issue, it is the privilege of the State to put in evidence all surrounding facts and circumstances which may bear upon the subject of inquiry. Proof of foot-prints found at or near the scene of the homicide, as well as the presence of all persons, were admissible, and the fact that some or all of the foot-prints or other objects found could be accounted for by testimony of persons claiming to have been on the ground before or after the homicide would not be valid reason for excluding evidence that they were found. Ruling Case Law, vol. 13, p. 106; Wharton's Crim. Ev. vol. 2, p. 1681; Michie on Homicide, p. 829; Haley v. State, 209 S.W. Rep., 675.
The witness Alexander heard the lick and went immediately to the deceased and while there picked up a stick which he hid in a fence corner, and subsequently the same night he went with the witness *Page 602 Safford and they got the stick. He said: "I do not know who picked it up, I think Mr. Safford. I was with him and saw him get it. Mr. Safford and I got it that same night." Safford testified that he went with Alexander and got the stick from the corner of the fence and delivered it to Alvin Banks, that he subsequently saw it in the hands of Tibbs, a deputy sheriff. He said that the stick exhibited to him on the trial was in his best judgment the same. Tibbs testified he got the stick which was exhibited to the jury, on the night of the homicide, from Alvin Banks. He had kept it and brought it to court. The witness Alexander was not able to identify the stick introduced in evidence as the one that he picked up. The indictment described the stick used with unnecessary particularity as three feet eight inches long, three inches wide and one inch thick. The record fails to disclose that any measurements of the stick introduced in evidence were given at the trial. Alexander made an estimate of it stating that he took it to be three or three and a half feet long, two and a half inches wide and an inch thick. The stick exhibited to the jury was also indentified by the witness Stocks who appears to have been with Alexander at the time it was picked up. We think there was no error in admitting the stick in evidence. Its identity and its dimensions as meeting those set out in the indictment were questions for the jury. Underhill on Evidence, sec. 314: Wharton's Crim. Ev., p. 276; 1 L.R.A. (N.S.) 419.
Appellant contends that the court was in error in rejecting his offer to prove the reputation of the deceased for violence. We are aware of no issue upon which this testimony would have been relevant. Irwin v. State, 43 Tex. 236; Branch's An. P.C., p. 1177, and cases cited. Appellant offered proof that some thirty days prior to the homicide the deceased, at a point some six miles from the homicide cursed a man by the name of Wootem and told him "he would cut his head off and chunk his body with it." This, as well as the reputation of the deceased mentioned, we understand the appellant deemed relevant as tending to show that another not acting with the accused had opportunity and motive to commit the offense. In a proper case testimony showing such opportunity and motive of persons in such proximity to the homicide as to render the facts of any weight in determining the identity of the slayer or in excluding the accused should be received. Taylor v. State, 195, S.W. Rep., 1149; Wallace v. State, 46 Tex.Crim. Rep.; McCorquodale v. State,54 Tex. Crim. 344; Ogden v. State, 58 Tex.Crim. Rep.. There was no suggestion in the evidence that Wootem was present.
The case was not one in which the State relied upon circumstantial evidence alone. Evidence of the witness Dickens was sufficient to take the case out of this rule in that he was positive in his indentification of the appellant as the assailant of the deceased. He said in his direct-examination: "I was with him when he was *Page 603 struck. Ledger Gilbert struck, him. Ledger Gilbert came up from behind us. When the lick was struck I looked around." On cross-examination, he said: "It is not true that I did not see the party who struck him. I did see him. The first thing that attracted my attention was the lick. I then looked around and saw the party who struck the lick. He was turning the moment I got a glimpse of him. He ran off. I saw him until he got up to the corner of the church. The stick fell down and struck my hand. I swear it was Ledger Gilbert. I swear it because I saw him and looked into his face. I saw his features. I could see him as he was turning and I knew it was he. There was light there. I think there was light shining on his head." We think there was no error in excluding the testimony offered.
The court was not in error in refusing to permit the appellant to prove that on a different occasion, and sometime subsequent to that on which the appellant had uttered a threat against the deceased, that he said to a third party that deceased's cursing him hurt the deceased worse than appellant. This was properly excluded as hearsay and self-serving. Branch's An. P.C., p. 58. The appellant having introduced evidence impeaching the witness Dickens by proof of statements contradictory of his evidence upon the trial, the State was within its rights in proving the prior consistent statements which are complained of. Branch's An. Texas P.C., p. 110.
The offer to prove that the witness Campbell had told the witness Tibbs that Loyal Gilbert, brother of appellant, who was under arrest, was not present at the time of the homicide, was properly rejected under the rule against hearsay and against impeachment of a witness upon a collateral issue. Branch's An. Texas P.C., p. 108.
We think there was no error in excluding evidence of the conversation between appellant and his brother at the church, where the homicide took place, and a short time prior thereto. Especially is this true, as the substance of the conversation, showing that the brother stated he expected to be absent and requested appellant to do certain work for him at home, was developed.
The assignments of misconduct of the jury and the misconduct of the court by causing the arrest of a witness during the trial raised questions of fact upon which the court heard evidence which we have carefully examined and deem it unnecessary to detail. Suffice it to say that in our opinion it supports the conclusion reached by the trial court that there was no new evidence given the jury in its retirement and that the arrest of the witness was not brought to their attention in a manner or at a time which was harmful to the appellant.
Discovering no errors which authorize us to reverse the judgment its affirmance is ordered.
Affirmed. *Page 604
ON REHEARING. October 8, 1919.