The offense is murder; punishment fixed at death.
The questions of law involved related to the motion to quash the first count in the indictment and the absence of proof of want of knowledge on the part of the grand jurors of the means used by the appellant in causing the death of the deceased.
The first count in the indictment contains an averment that the appellant killed Mary Bookman in some manner and by some means, instruments or weapons to the grand jurors unknown. The averment on its face is sufficient. Sanchez v. State, 46 Tex. Crim. 179; Hughes v. State, 60 S.W. Rep. 562; Walker v. State, 14 Tex.Crim. App. 609. In refusing to quash the count mentioned no error was committed.
The second count charges that the appellant killed the deceased by beating her with an axe-handle. Both counts were submitted to the jury in the court's charge.
The evidence adduced on the trial leaves uncertain the precise cause of the death of the deceased but creates no doubt that she was killed by the acts of the appellant. Under such conditions, the averment in the indictment to the effect that the means used in causing the death was unknown to the grand jury is sufficiently proved. Forest v. State, 300 S.W. Rep. 51; Wharton on Homicide, 3rd Ed., Sec. 563; Wharton's Crim. Law, Sec. 658; Bishop's New Crim. Proc., 2nd Ed., Vol. 2, Sec. 552; Mitchell v. State, No. 11,739, not yet reported. There was evidence before the jury that the appellant beat the deceased with a part of an axe-handle; that he stood up and stomped her with his feet, having his shoes on; that he knocked her down with his fist and that he kicked her with his feet, a few moments before she expired; that during his assaults he stated that he wanted to kill her. The scene of the tragedy (the home of the appellant and his wife) revealed manifestations of the assaults in the way of blood on the floor, the mattress on the bed, the axe-handle, the deceased and on the appellant. The appellant testified and introduced evidence that his wife was subject to sick spells accompanied by fits of unconsciousness and bleeding from the nose. He testified denying the assaults and stated that while in *Page 236 the yard after eating a hearty dinner, the deceased became ill and died while he was endeavoring to bring her in the house. Witnesses testified to the assaults, and the body of the deceased exhibited the effects of them as disclosed by the testimony of officers and others who saw her body after her death.
In the court's charge, a conviction was authorized if the appellant "did voluntarily kill and murder Mary Bookman by some means, instruments and weapons as charged in the indictment."
A doctor testified and described the condition of the deceased in the following language:
"From her hips down to her knees, she was beaten blue. Instead of being black, she was blue. There were no broken bones, but she was badly bruised, and her neck had several bruises around on it, and there was one cut in the back of the head (near the crown of her hair) and a number of bruises on her abdomen. From the nature of those bruises on her abdomen, as I saw them, it would be possible for kicks or blows that would make bruises of that sort to cause internal injuries that would bring about death. As to what caused that woman's death, in my opinion, I will state that my opinion would be an internal hemorrhage caused from injuries, or blows, or whatever was applied to her. If a person in that woman's condition were to drink at one time, an hour or two before her death, a gallon or more of water, in my opinion, that would indicate an internal hemorrhage, and in my opinion, that is what caused that woman's death. * * * If this woman had been suffering with the right kind of acute indigestion prior to this, it would have caused her death just as quickly or more so than an internal hemorrhage. The blows and bruises on her body and abdomen and head were not sufficient to cause her death, and it was something else besides these wounds that brought about her death. The injuries on her body and head did not disclose the cause of her death. * * * I did not open her abdomen and see what was the cause of her death, but it was some internal trouble that caused her death, * * * Heart trouble could have caused her death."
The defensive theory, namely, that death resulted from indigestion, heart failure or other natural causes, was submitted to the jury.
The transaction was one which justified separate counts in the indictment, and the evidence was not such as required an election between the counts. The applicable rule is that stated in Branch's Ann. Tex. P. C., thus: *Page 237
"If different counts charging the same character of offense are inserted in the indictment to prevent a variance and there is evidence supporting each, the State is not required to elect between such counts."
See Branch's Ann. Tex. P. C., p. 233, sec. 444, subd. 9 and 10, in which many precedents supporting the text are collated. Among them are Gonzales v. State, 12 Tex.Crim. App. 663; Wadkins v. State, 58 Tex.Crim. Rep.; Carr v. State,36 Tex. Crim. 3.
Perceiving no error presented for review, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.