Appellant earnestly insists that we erred in holding that the trial court did not err in failing to charge on the law of circumstantial evidence. We have again reviewed the record in the light of the appellant's motion, but see no reason for receding from the conclusion reached as stated in the original opinion.
It is the settled rule in this state that a charge on circumstantial evidence is not required if there is proof that the deceased, either as a part of a dying declaration or as a part of the res gestae, stated that the defendant shot him.
In the present case, there is direct and positive evidence that appellant backed the deceased across the street, striking at him while he was kicking at her to prevent her from inflicting injuries upon him; that during the encounter the deceased remarked, "Don't stab me with that ice pick," then fell to the ground and called for someone to carry him to a doctor, but he died before medical aid could be summoned. What the deceased said to appellant at the time was a res gestae statement. There is also evidence that an ice pick was found on the ground near where the deceased was struck. The wounds found on the body of the deceased were described by witnesses as being "stab wounds" such as were ordinarily inflicted with an ice pick. From the foregoing statement of the evidence, it is obvious that there is direct testimony that appellant, and she alone, inflicted the wounds which caused his death. Consequently, a charge relative to the law of circumstantial evidence was not required. See Hernandez v. State, 47 Tex. Crim. 20; Polk v. State, 35 Tex.Crim. R.; Crews v. State,34 Tex. Crim. 533, (543).
Believing that the case was properly disposed of on the original submission, the appellant's motion for rehearing 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. *Page 160