The contention of the State on the original submission and on the rehearing, as we understand, was that the State's case would have been stronger had it been shown that appellant had mud on his person and clothes on the night of and following the homicide. It is a basic proposition in the case that the party who did the killing walked through black muddy soil for some distance, and that some of this mud was soft and deep, so much so that tracks could not be discovered by reason of the fact the soft mud covered them. It was a very prominent fact throughout the case that such was the condition of the country about the scene of the tragedy, and that it had been raining heavily. This was testified by all the witnesses who testified in regard to this phase of the case. It was known the night of and before the homicide that this was the condition of the country. It was also known at the time of and before appellant's arrest the night of the homicide. The State undertook to follow tracks through this mud, and it is claimed that in some places where they expected to find tracks the ground was too muddy and soft to leave impression of foot tracks.
It is a fair deduction, if not an irresistible conclusion, that the party who did the killing must have had mud on his person and clothing. The State proved that appellant's gun had mud on it near the muzzle at the time of his arrest about 2 o'clock at night after the killing about 9:30 o'clock. There was no attempt by the State to show that appellant's clothing or person was besmirched by the black soil. There was no attempt to prove that he had changed his clothes after the homicide and before his arrest. Had he changed his clothing this fact could have been shown by the State, as we understand this record, from various *Page 496 witnesses. The Mexican, for instance, went with appellant in the hack from his home to Martindale, thence to Limerock, and thence on his return from Limerock to his home, the place from which they started. He naturally would know or ought to have known how appellant was dressed from the time they left appellant's home until they returned that night. It would be natural for him to observe appellant's clothing on his return to the hack, if his testimony is true, and discover mud about his person if such was to be found. Yet this witness was not asked anything with reference to these phases of the case. The State's theory with reference to this witness was that he and appellant left home in the hack together, were together all the evening, and returned to appellant's home together that night. Appellant and the Mexican were both arrested at appellant's residence about 2 o'clock that night. Quite a number of witnesses also saw appellant at Martindale, some of whom talked with him and were with him. There is evidence also that a number of witnesses saw him in a saloon at Limerock and in a store at Limerock as well. None of these witnesses were questioned with reference to whether he had changed his clothing, or with reference to the fact there was any mud upon his clothes. It is true that the witnesses at Martindale and Limerock may not have seen appellant, and doubtless did not see him, after he left Limerock, but they saw him at those places in the evening and up to about 9 o'clock or later, and they saw him again early the next morning, for he was arrested at 2 o'clock and reached the scene of the homicide at 4 or 5 o'clock in the morning. The witnesses who saw appellant at Limerock also saw him under arrest at the place where the homicide occurred. They could have given evidence, if such was a fact, that his clothing had been changed. The State in its original submission and on rehearing urges that appellant's wife could have testified to whether or not his clothes had been changed, or that mud was on them inasmuch as he returned that night about 12 o'clock and she saw him, and that because his wife was not subject to examination along this line that, therefore, the jury should deduce from that that he did have mud on his clothing, and that he had changed his clothes. That she did not testify in regard to this might be a matter perhaps under the decisions that could be discussed before the jury, but this does not apply to the other witnesses, because the defendant could not close their mouths, and most of them were State's witnesses and earnest in the prosecution. Some of them were the children of deceased who were sufficiently interested to employ prominent attorneys as counsel for the prosecution. These witnesses were not questioned as to the change of appellant's clothing, and so far as this record is concerned defendant had on the same clothing when he was arrested that he had on when he left home before the tragedy. No witness in the case would have been better versed perhaps with reference to this matter than the Mexican, Pena, who was in the hack with appellant, and yet he did not see any mud upon appellant's clothing, nor does he speak of any change of clothing by appellant during the entire day or night. That he was *Page 497 not asked about it is no reason why the jury should presume that appellant did change his clothing. It is the duty of the State to make out its case. It was not incumbent upon the defendant to prove a case for the State. He is clothed with the presumption of innocence, and in cases of circumstantial evidence the State by its evidence must exclude every reasonable hypothesis except that of guilt. Had appellant been found with mud upon his clothing, or that he had changed his clothing, or that he had pulled off his shoes and gone barefooted, might have been circumstances of more or less weight of an incriminating nature. The State must meet and overcome the presumption of innocence to the exclusion of every reasonable hypothesis except guilt. Failure of facts to prove the State's case does not raise the presumption of guilt against the accused. Inferences and deductions from failure of proof are to be taken not against the accused but in his favor. The position of the State that the jury might presume against the accused in the absence of such facts is not a correct view of the law. The jury is not authorized to so presume. The rule is that the State must prove its case to the exclusion of every reasonable hypothesis except guilt, and where it fails to so prove incriminating facts it redounds to the benefit of the accused. There are a great many facts in this record that were not collated in the original opinion and will not be collated in this opinion. The record contains something like one hundred and eighty pages of testimony and deals very extensively in all character of details on direct as well as cross-examination of the witnesses. We are of opinion in writing originally and now that the case was sufficiently stated as to the incriminating facts. To undertake to state all the testimony in a voluminous record of facts as contained in this transcript would render the opinion uselessly long.
As stated in the original opinion, the question of motive is not always a criterion but that it adds to the strength of a case when proved as one of the circumstances, or it might detract from it with no motive proved. It is not a sine qua non in any event. The State's theory on the question of motive seems to be based upon the fact that appellant owed his mother-in-law something like eleven thousand dollars on a tract of land, and that he was afraid she would press him for payment in January, as the note then fell due. This is more of a theory, however, than a fact. We have looked over this record again to ascertain if there is any tangible reason to believe that appellant thought his mother-in-law was going to press the collection of that debt and we fail to so find. It is also urged that by the death of the mother-in-law his wife might secure her portion of her mother's estate. That is speculative, because there is nothing to show what disposition the deceased was going to make of the property, and at the time it was not known, so far as this record is concerned, what her purpose and intentions were. One or more of her sons had signed her name to checks without her authority, upon the discovery of which she protested and ordered the bank not to honor any more *Page 498 checks unless she herself signed them. The killing of the mother-in-law by appellant would not have cancelled the eleven thousand dollar debt. She retained a vendor's lien on the land and was supposed to be sufficiently secured, and there is no evidence what part of the property his wife or any of the children of deceased would get. We hardly think this is of any serious import. Had she died without a will his wife would have, under the law, secured her proportionate share as a child, and there is no evidence that a will had been written changing the legal status of her rights. This reason would apply to any of her brothers and sisters.
With reference to the testimony of Pena in regard to the trip taken by himself and appellant on the evening of the homicide, and especially as it relates to the hack and the gun and the contents of the hack, it may be stated that Pena made many statements to the effect that he did not see a gun in the hack, and that he never made a contrary statement showing there was one until he had been removed from the jail in Guadalupe County to the jail in San Marcos, Hays County, some two months or more after being placed in the Guadalupe County jail. Upon the trial he testified that appellant got out of the hack at a point he designates and went to the middle of the hack and got a gun from the hack, stating that he was going to see a man who owed him something. Pena assisted appellant in hitching the team to the hack before they left appellant's home, went with him to Martindale, where Pena bought a lot of groceries and put in the hack, among other things a sack of flour, some coffee and beans and possibly other groceries. The witness Sanderson testified that he saw a box of groceries placed in the hack by the Mexican, Pena, but saw no sacks in the hack; that he did not see any gun in the hack. He was asked if there might not have been a gun under the front seat. To this he answered there could have been one but he did not see it; that a gun might have been placed under the seat of the hack by being taken to pieces but he did not observe one. His language was this: "I didn't see any shotgun. I guess anybody could have put one under that seat if he had taken it to pieces. I did not look under that seat." He also states: "I didn't see any sacks in there." Pena testified that he bought a sack of flour, some beans, coffee and potatoes at Martindale. He says: "I did not see anything in front of the hack where our feet were except the points of the sacks and the rubber that was in there. I did not see any gun in the hack then." He also states: "I did not see Mr. Wilkie barefooted any time that night. I was sitting on the front seat of the hack and Mr. Wilkie got the gun from about the middle of the hack. I saw that he went around to the middle of the hack and got the gun, but he did not move anything." He also stated after his arrest, while at the Justice Court at Staples, "I told my wife that Mr. Wilkie had no shotgun in the hack that night." Speaking also of an interview he had with the sheriff and deputy sheriff of Guadalupe County while in jail at Seguin he said: "I did then and there tell them that Wilkie had no gun in the hack that night, and *Page 499 I told them that Wilkie did not get out of the hack after he left the saloon and until we got to the river." It was between the saloon and the river where the witness testified on the trial that Wilkie got out of the hack and got the gun from the middle of it. He also states: "I never at any time told anyone that Mr. Wilkie had a shotgun in the hack that night before I was taken to the San Marcos jail and had talked to the Mexican Santiago. I told Mr. Terrell that Mr. Wilkie had no gun in the hack that night and that Mr. Wilkie had never got out of the hack from the time he left the saloon until he got to the river." These are some quotations from Pena's testimony to show the divergence and difference between his statements prior to the trial and his evidence on the trial. These quotations are taken from the record and to which he testified on the trial.
We deem it unnecessary to go into a further detailed statement of these matters. We have reviewed this record again and are firmly convinced of the fact the opinion in the original hearing is correct. The burden is not on the defendant to prove his innocence or to account for facts that can be proved by the State. This is not a question where facts are exclusively within the possession of the accused, and it is not one of those cases where deductions adverse to the defendant for not disclosing facts exclusively within his possession. The State must make its case, where the accused pleads not guilty, to the exclusion of the presumption of innocence and the reasonable doubt, and the burden never shifts to the defendant. These facts were not exclusively in his possession and within his knowledge, and if so he was not required to prove them. Practically all the witnesses who testified knew that it had been raining and that the country surrounding the scene of the homicide for some distance was black soil and very muddy. They knew that a man could not approach the residence where the deceased was killed without going through this black mud, for the residence itself was situated on this black soil. There is some evidence of the fact that the officers when they arrested appellant were apprised of this, because they examined his gun and found, they claim, some black mud on it. They knew of the muddy condition of the country. They arrested appellant that night and took him to the scene of the homicide. The next morning early, in investigating, found barefoot tracks approaching the house in one direction and leaving it in another. They said this was a large barefoot track. Appellant was a prisoner, as was the Mexican, and yet there is nothing to indicate that they examined his clothes or made any investigation as to whether he was the man who made those tracks or had his clothes soiled with the mud from the scene of the homicide. If appellant did this killing he had to walk a half mile or more in going from the hack to where the killing occurred and same distance on his return, and all through this black mud. Here the matter rested, and it will not do to hold that any inference of guilt should be drawn from the defendant's silence with reference to these matters. It was the business of the State *Page 500 to make out its case to the exclusion of every reasonable hypothesis except guilt.
The motion for rehearing is overruled.
Overruled.
PRENDERGAST, JUDGE, dissenting.