The district attorney who prosecuted this case has filed a motion for rehearing, in which he has ably discussed several bills of exception, making the contention that this court was in error in sustaining them. The opinion states the rule as to Bill of Exception No. 2, and cites as authority Powers v. State. This case contains a very able discussion of the rule as summarized by both Wharton and Greenleaf. From these authorities, it is our conclusion that a witness may state such opinion as will amount to a "mere short hand rendering of the facts." The weight of his evidence is a matter for the jury and he is, of course, subject to cross examination by opposing counsel. We find frequent examples of witnesses being permitted to say, "He seemed to be frightened," "He was greatly excited," "He was much confused," "He was agitated," "He was pleased," "He was angry," etc. These emotions are sometimes expressed to the observer by appearance or gesture characteristic of the individual, which gestures and characteristics one may not be able to communicate other than by his own opinion or conclusion. (1 Greenleaf on Evidence, 13 Ed., sec. 440 and note on p. 494; Best on Evidence, 585; Dill v. State, 6 Tex. App. 113[6 Tex. Crim. 113]; Richardson v. State, 7 Tex. App. 486[7 Tex. Crim. 486]; Hardin v. State, 8 Tex. App. 653[8 Tex. Crim. 653], 658. See also, Commonwealth v. Sturtivant,117 Mass. 122.)
The question raised is not without its difficulties, but a thorough investigation convinces the writer that the original opinion correctly states the rule, under the facts of the case before us. *Page 553
We believe the motion indicates a misunderstanding as to the holding relative to Bill of Exception No. Three. It was permissible for the State to ask the question involved, as a basis for impeachment, but the non-responsive answer given was not utilized for that purpose. When this developed, counsel for the defendant then asked that it be withdrawn from the jury, which the learned trial judge declined to do. It therefore appears in the record as primary evidence, purely hearsay in its nature and inadmissible. We are unable to find Butler v. State, said to be in 132 S.W. 233 and relied upon by prosecution. The other authorities cited do not reach the question as we view it.
The same reasoning will apply to Bill of Exception No. Four. Regardless of the purpose and intention which the prosecuting attorney had in mind in framing his question, the result, as reflected by the record, was that indicated in the opinion.
The original opinion does not treat Bills of Exception Nos. Seven and Nine, and we are expressly requested to do so in view of another trial of the case, the district attorney being of the opinion that within the testimony there involved is found the very core of his case. In these two bills, as well as in Nos. Eight and Ten, witnesses were being asked about other and different transactions which might be considered by the jury to prove that, at some time prior to the homicide, appellant had been on a general rampage, engaging in either reprehensible or criminal conduct. We are unable to find that either of these transactions had any connection with the homicide, from the standpoint of time, place, or parties. A proper construction of the language found in Bill No. Seven amounts to a certificate of the trial judge that the evidence was admitted over objection and that "it had nothing to do with this case and that it was prejudicial." It is not necessary to rely upon the certificate of the judge that it contained error, because same is the inevitable construction to be given each of the bills, as approved. Clearly the State could not show the general conduct and criminal acts of appellant at a time prior to nor after the homicide, without connecting them in some way with the offense for which the party was on trial or for the purpose of refuting, in some manner, defensive issues raised by him. Spivey v. State, 171 S.W.2d 140.
After further careful consideration of the record before us, in the light of the motion, it is our conclusion that the original opinion correctly disposes of each issue treated, and the State's motion for rehearing is overruled. *Page 554