Appellant in his motion again complains of the testimony of the sheriff as to what he found on the ground where the fatal difficulty occurred in that same was prejudicial and inflamed the minds of the jury. Most of the State's proffered testimony is usually prejudicial to the appellant, otherwise much of it would be inadmissible. If such testimony be true, and have a tendency to inflame the minds of the jury, the appellant was to blame for the commission of the act that engendered such in the jury's mind. *Page 333
The testimony complained of in bills of exceptions Nos. 3, 4, 5 and 6, all relating to the conduct of the appellant with Johnnie Isom, the sister of the deceased, and her testimony relative thereto, it seems to us, is relevant to the whole case. It shows the reason and motive for the acts that finally culminated in the death of Floyd Isom; it supplies a reason for appellant's appearance on the premises of the deceased's father; for his being armed thereon; for his threats relative to the whole Isom family, and especially for his threats against the deceased, and surely shows malice toward the persons whose duty it was to have protected Johnnie Isom from mistreatment at the hands of her alleged paramour. We also note from the court's qualifications that the appellant placed this in evidence on his cross-examination, — went into all this testimony more fully than was done by the State. We still think the testimony covered by these bills was legitimate and proper.
We also think that the testimony of the witnesses Kattes and Lillian Tullos was admissible to show malice, to evidence a heart regardless of social duty and fatally bent on mischief. Appellant had been warned to let this girl alone, and after having taken her from her home, and carried her all over that portion of the State, after having had an alleged mock marriage performed, after having chained her to a bed, and while there helpless, having beaten her severely, and after she had returned to the asylum of her father's home, he contrived this scheme to again possess himself of her, and while hiding in the brush he shot her brother and killed him. Such conduct savors rather strongly of a malicious motive, and seems to be admissible as tending to show such a motive, and especially does it show such when taken into consideration with the threat testified to by Johnnie Isom relative to her brother Floyd, the one he finally killed.
Appellant insists that bills 18 and 19 evidence serious error. These bills relate to the testimony of the witness Carrigan who testifies to having seen the appellant concealed on the senior Isom's land near the place from which he finally shot Floyd Isom, on another and different occasion, and that the appellant held a pistol in his hand at such time. It seems to us that this testimony was admissible to show that the appellant was lying in wait, not only once but twice, for the purpose of repossessing himself of Johnnie Isom, and was in a position at such time to carry out the threat testified to by Johnnie Isom when she said: "He [appellant] said that he knew Dick [Floyd], my brother, would take up for me and help me, but that he would kill my *Page 334 whole family, Dick included, if he had to slip up to the window and shoot us through the window light." We see no error in allowing this witness to testify to this previous transaction, connected up as it is with the actual scene of the killing, and occurring about two weeks prior thereto.
Appellant next complains of the testimony of Mrs. Will Doran relative to a telephone conversation supposedly had with appellant the night of the homicide. She testified that she had such conversation with a person who said his name was Omer Smith, and that she recognized the voice as that of Omer Smith; that it sounded like Smith's voice, although she could have been mistaken, and that he said " 'Who is this,' and I answered San Saba again. Then he wanted to know which one it was and I said 'this is Vada Lee.' Then he said, this is Omer Smith, and I want you to tell Will Doran not to come after me tonight. I have killed two son-of-a-bitches and I am going to get the third one before morning." Mrs. Doran, while the wife of the sheriff, was serving as a telephone operator at such time.
Mrs. Doran testified, in part, on cross-examination as follows: "I don't know how many times I have heard Omer Smith's voice prior to that time. I don't suppose I had heard it so many times but I judge I had heard it fifteen or twenty times. * * * When I first heard his voice I thought it sounded like Omer Smith. * * * The person who called me told me he was Omer Smith. I thought it was his voice all of the time but of course I could be wrong about that. It sounded like Omer Smith to me. Of course, I could be mistaken about a voice over the telephone. * * *."
"Evidence of a telephone conversation is competent where the identity of the parties thereto is established." 18 Tex. Jur., p. 83. In Stepp v. State, 31 Tex.Crim. Rep., 20 S.W. 753, appears the following: "The appellant further complains that the court erred in admitting statements of the defendant made over the telephone. Dr. McCollum testified that he knew and distinguished defendant's voice, and that was all that was necessary." Identification is always a matter of best judgment or impression. In Morse v. State, 106 Tex.Crim. Rep.,293 S.W. 568, we held that upon the question of identity a witness might state his belief, impression or his best judgment, and the fact that he was not positive in his identification goes to the weight of the testimony and is for the jury. See Miskell v. State, 128 Tex.Crim. Rep.; also Price v. State,35 Tex. Crim. 501. It occurs to us that the identification of appellant's voice herein is as full and satisfactory as such *Page 335 can be made, and taken in conjunction with the statements in such conversation, it is as complete as any identification by voice can be made. It seems to us that the objection to such testimony goes to the weight rather than to the admissibility thereof.
We have thus written at length on account of the insistence of appellant's attorney as well as the gravity of the punishment, and our conclusion is that we were correct in our original opinion and the disposition therein made hereof. The motion for rehearing will therefore be overruled.