The motion for rehearing in this cause gives a very comprehensive discussion of the authorities dealing with the admissibility of evidence over objection when the same, or like evidence, has been admitted without objection, as distinguished from "testimony similar to, or of like character as that objected to * * *." Even though the case before us carries the extreme penalty, we are unable to see the harm in the testimony complained of and, furthermore, it is the opinion of the writer that it is pertinent testimony.
For the purpose of discussing the argument made in the motion, we will call attention to the erroneous position therein taken to the effect that the record did not warrant the statement in the opinion: "He (deceased) had obtained a warrant for the arrest of appellant and went to his home for the purpose of executing it." The statement is made that there was no basis for this conclusion. We quote from the testimony of L. D. Buchanan (S. F. p. 7): "I think at that time Judge Hamon had some papers against the defendant, Henry Williams, one warrant for gambling and one warrant for beating a woman." Again, from the testimony of L. H. DuBose, Justice of the Peace, (S. F., p. 17): "Judge Hamon filed some complaints against Henry Williams for fighting and for gambling. * * * I issued two warrants for Judge Hamon." Later, on the same day, the deceased went to the home of the defendant who was sitting with his shotgun across his lap and his pistol in his pocket, or nearby. According to the State's testimony and that of Willie Joe Lamkin, chief witness for the defense, the shooting was begun by appellant without any reasonable provocation. It became a proper subject of inquiry as to the motive for the killing. When the defense had closed its evidence, the State produced the widow of the deceased who gave the evidence set out in the one bill of exception found in the record. Coupled with the other evidence herein referred to, it appears that appellant might well have been expecting the deceased to have the warrant for his arrest on some charge growing out of the whipping he had given this woman. She had gone to the home of deceased some time prior to the killing on the same date. From the surrounding circumstances, *Page 527 it appears appellant knew that. We think that the extent of the injuries he inflicted on the woman became pertinent testimony in this case, to show motive for the shooting. It appears that the bill, as quoted, reaches testimony that is hearsay, particularly that part which says that the negro woman told her that she had been choked. Such portions of the quoted testimony as may not be admissible would probably have been excluded by the trial court, if specific and appropriate objection had been made to it. In the form that the bill is presented it is duplicitous and can not be sustained. The trial court could not have ruled otherwise than he did on an objection which goes to some evidence that is admissible and some that is not.
The evidence of the son of deceased was calculated to, and likely did, have great effect on the minds of the jury who heard it. The defendant detailed the killing and did nothing to commend himself to the jury. They would have been warranted in finding him guilty of murder with malice had there been no other evidence than that given by him. His defensive theory was contradicted by his own witness, Willie Joe Lamkin, the effect of whose testimony was to corroborate that of A. O. Hamon, Jr. Under all the circumstances of this case, we think the court correctly admitted the evidence of Mrs. Hamon and we find no error in the record.
The appellant's motion for rehearing is overruled.