Appellant complains because we did not discuss his Bill of Exception Number Two.
This bill complains of the following matter:
In the development of its case, in chief, the State called the witness Stagner, a rural mail carrier, who testified that some time prior to the killing he met the appellant, who at that time had an old shot gun with him. A gun was exhibited to the witness, which was identified by him as the gun he saw in appellant's possession at the time mentioned. The gun exhibited was the one found in appellant's home shortly after the killing and which the State contended was used in the killing.
In connection with this testimony, the State proved by the witness that at that time he had a conversation with the appellant *Page 140 in which the witness asked him why he didn't get him a good gun, to which appellant laughingly replied: "I believe I will just keep it; it shot a man once." The witness further stated: "* * * but he didn't say who it was and I didn't ask him."
This statement on the part of appellant was objected to as as being irrelevant, immaterial, and inflammatory. The objection was at that time overruled. Later, at the conclusion of the testimony of the witness Stagner, the testimony objected to was by the court withdrawn from the jury's consideration. Appellant contends that reversible error is reflected, nevertheless.
It must be remembered that at the time this testimony was offered, the State's case was entirely circumstantial and was not otherwise until the appellant, testifying in his own behalf, admitted the killing with the gun mentioned. Under the circumstances existing at the time the witness testified to the conversation, we are not prepared to say the testimony was inadmissible, especially in view of the fact that we do not know when the conversation occurred with reference to the killing. It may have been sufficiently close and related thereto to constitute a statement against interest or tendency to show appellant's state of mind.
In view of this condition and the withdrawal of the testimony by the court, we are unable to reach the conclusion that appellant was prejudiced thereby.
We have again examined the record in the light of appellant's contentions as originally presented and remain convinced that reversible error is not reflected by this record.
The motion is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.