The offense is murder; the punishment, confinement in the penitentiary for 35 years. A former appeal is found reported in 113 Tex.Crim. Rep., 24 S.W.2d at page 841.
Appellant had leased his filling station to deceased, John Hornsby. The lease was to expire August 1, 1928. The homicide occurred at the filling station on July 25, 1928. It was the theory of the state that appellant killed deceased in order that he might get immediate possession of the filling station. In support of this theory the state offered testimony to the effect that appellant stated to the county attorney that he did not like the way deceased carried on his business; that he was having some trouble with deceased; that the county attorney might have to prosecute him for something else besides running a slot machine. It appears that the county attorney had theretofore forced appellant to take a slot machine out of his place of business. On the question of appellant's desire to obtain *Page 103 immediate possession of his filling station, witnesses for the state testified, in substance, that appellant had made arrangements shortly prior to the homicide to lease his filling station to another man, and that it was his desire to place said party in immediate possession. It was further in evidence, from state's witnesses, that appellant had expressed disgust at the fact that deceased would not sell intoxicating liquor at the station.
Hornsby, with a shotgun wound in his body, was found dead at his filling station shortly after 6 p. m. His watch, which had been struck by some shot, had stopped at 6:09 p. m. Appellant was seen at the filling station carrying a 12-gauge single-barrel shotgun a short time before the body of deceased was found. Two boys were at the filling station when appellant approached. After buying some soda water, they left appellant and deceased at the filling station, and rode up the highway on their bicycles. At the time they left the station there was no one there except appellant and deceased. After traveling up the road some distance these boys heard two shots, which they testified sounded like the reports of a shotgun. Immediately after the second shot was fired one of the boys, according to his testimony, looked back toward the filling station and saw appellant standing near the station with a shotgun in his hand. He could not see deceased. Tracks led from the filling station to appellant's house, where he was arrested less than an hour after the killing. A shotgun shell which fitted appellant's gun was found near the body of deceased. Witnesses testified that it was a Super-X shell. The plunger had marked the shell below the cap. Witnesses testified that in their opinion the shell had been recently fired. When appellant was arrested a single-barrel shotgun and several shells were found in his house, and a Super-X shell, which had been fired, was found just outside appellant's door. The shell found outside the door showed that the plunger had made a mark below the cap. The shells found in the house were not Super-X shells. The arresting officer, Howerton, testified to having made an experiment with appellant's gun for the purpose of determining where the plunger struck the shell. Removing the powder and shot from one of the shells found in the house of appellant, the officer placed it in appellant's gun and pulled the trigger. The plunger struck the shell below the cap, at approximately the same place as found on the shell outside the door and the one picked up near the body of deceased. Two state's witnesses testified that they had borrowed appellant's *Page 104 gun shortly before the homicide, and that, upon returning it, they had given appellant several Super-X shells. Officer Howerton testified that appellant's shoes fitted the tracks leading from the filling station to appellant's home. There was a cartridge in appellant's gun at the time he was arrested. It had been snapped three times, according to the testimony of Howerton. It appeared that each time the cartridge had been snapped it had been turned around in the gun. Following the tracks from the filling station to the house, arresting officer Howerton came to appellant's residence. Upon being called, appellant came to the door, and, according to the testimony of the officer, the following conversation ensued: "I said 'Mr. Rippy I was making an investigation and I thought may be you might be able to give me some information. Did you happen to hear any shots fired down near the underpass this afternoon?' " According to the version of the officer, appellant answered in the negative, and then hesitated for a moment and said: "That old man was a good old man. I was down there at two o'clock and haven't been back since." The officer said that appellant made the statement before he had advised him (appellant) that deceased had been killed. Several witnesses for the state testified that they passed the filling station after 6 p. m. but did not see deceased. When the body of deceased was searched, some checks and a sum of money amounting to approximately twenty-two dollars were found. There was nothing to indicate that he had been robbed.
Testifying in his own behalf, appellant denied the killing. It was his theory that deceased was killed by hijackers. In support of this theory, he placed on the stand a witness who testified that he had seen some rough looking men in an automobile at the filling station shortly before the death of deceased. He said that these parties appeared to be drinking, and that they had a shotgun in their car. Appellant and several of his witnesses testified to friendly relations existing between appellant and deceased. Appellant said that he left the filling station shortly after meeting some boys there on bicycles. On his way home, according to his version, he shot at a rabbit and snapped his gun in an effort to shoot a second time. He denied that he owned any Super-X shells and declared that the shell found by deceased's body had not been in his gun. Appellant testified that some time before the homicide he had shot at a rabbit in the yard. Appellant admitted that the shells found in the house belonged to him. A witness for appellant testified that he had talked to appellant about leasing his filling *Page 105 station and appellant had stated that it was all right with him for deceased to keep the filling station until August 1st, the date his lease expired. Appellant offered two or three witnesses who testified that they passed the filling station shortly after 6 o'clock and saw deceased there alone, and that he was alive. Several witnesses testified that appellant's general reputation for being peaceable and law-abiding was good.
The court gave a charge covering the law of circumstantial evidence. It seems to be appellant's position that the testimony of his witnesses to the effect that they saw deceased alive after 6 o'clock destroyed the state's case. Attention is called to the fact that witnesses for the state testified that they passed the filling station shortly after 6 o'clock and did not see deceased. Moreover, at the time the shots were fired one of the state's witnesses, according to his version, looked back towards the filling station and saw appellant, with a shotgun in his hand. He could not see deceased. Without again detailing the facts and circumstances in evidence, the opinion is expressed that the circumstances are sufficient to meet the measure of the law. We quote the rule as announced in Branch's Annotated Texas Penal Code, sec. 1875, as follows: "In order to warrant a conviction on circumstantial evidence each fact necessary to establish defendant's guilt must be proven by the evidence to the satisfaction of the jury beyond a reasonable doubt; all such facts must be consistent with each other and with the defendant's guilt, and all the circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the defendant committed the offense charged, and must exclude every other reasonable hypothesis except that of defendant's guilt." In support of the text many authorities are cited, among them being Baldez v. State,37 Tex. Crim. 413, 35 S.W. 664, and Blount v. State (Texas Crim. App.), 64 S.W. 1050.
Bill of exception No. 1 is concerned with the refusal of the trial court to change the venue. It was averred in the application that there existed in Denton county so great a prejudice that appellant could not obtain a fair and impartial trial. Appellant offered three witnesses who testified, in substance, that in their opinion, appellant could not obtain a fair and impartial trial. Six witnesses for the state entertained an opinion to the contrary, and testified that they were well acquainted in the county and had come in contact with the citizenship since the commission of the offense. They said that they had not heard *Page 106 the case generally discussed, and were of the opinion that there was no prejudice against appellant. The testimony pro and con presented conflicting theories. It is the rule that if conflicting testimony as to prejudice arises from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying the application will not be disturbed on appeal unless it be made to appear that the trial court abused its discretion. McNeely v. State, 104 Tex.Crim. Rep., 283 S.W. 522; Shelburne v. State, 111 Tex.Crim. Rep., 11 S.W.2d 519; Davis v. State, 120 Tex.Crim. Rep., 28 S.W.2d 794. We are unable to reach the conclusion that the record reflects an abuse of the discretion vested in the trial court.
Bills of exception Nos. 4, 8 and 9 relate to appellant's objections to testimony of arresting officer Howerton touching the result of his search of appellant's residence and premises, and, further, to his testimony relative to certain experiments he made with appellant's shotgun and the cartridges found in his house and on his porch. The specific objection to this testimony was that the arrest of appellant was illegal in that the officer had no warrant; that a contemporaneous search was not warranted in view of the fact that the arrest was illegal; and that the officer had no right to take appellant away from the premises and thereafter return and make a search of the house and premises without having secured a search warrant. We deem it proper to quote the court's qualification appended to the bills, as follows: "The defendant testified that the shotgun found in his house by witness Howerton and identified by Howerton on the trial was his shotgun and that it was the same shotgun that he carried with him to deceased's filling station shortly before the deceased met his death and that he took it back to his house and that it was in his house and in the same room where the witness Howerton testified he saw it when he first went into the house with the defendant when defendant wanted to put on his shoes. The defendant further testified that he owned and had 7 or 8 shotgun shells in said room of his house at the time the witness Howerton was with him, and that they were the same gauge and size shells as those identified by the witness Howerton as having been found by him in said room of the defendant's house. The defendant further testified that his shells which were in the room at the time Howerton was there were red, as he remembered. He testified that his shells were size twelves. The defendant further testified that a shell was in his shotgun at the time the witness *Page 107 Howerton was in the house with the defendant, and that it had been snapped twice, but that he did not think he had snapped it three times. The witness Howerton testified that he was not positive whether he found the shell that was on the porch at the time he was there in the house with defendant or whether he found it when he went to the house the second time, but that it seemed to him that he found it on the second time he was at the house. The witness Gale, in answer to questions propounded by the defendant, testified that he had seen the defendant many times carrying his shotgun around about his premises, hunting rabbits; and that rabbits were plentiful that spring before the homicide, and that it was not uncommon to see the defendant and all the other people out there carrying shotguns. Defendant's wife, in answer to questions propounded by defendant, testified that the defendant killed a rabbit near 'the mulberry tree' close to the house some two months before the homicide, and the defendant testified that he was a rabbit hunter and usually carried about two shells with him when he hunted."
The state introduced in evidence the Super-X shell found by the witness Howerton near the body of deceased. Also the state introduced in evidence appellant's gun, the cartridges found in his house, the empty shell found on appellant's porch, and the cartridge found in the gun at the time the officer took it. Touching the shells which were later introduced in evidence, the witness Hooper testified, without objection, as follows: "The shell which you have handed me is the one that was picked up in front of the filling station and near the body of Mr. Hornsby. There was quite a number of shotgun shells in the box turned over to you. The box of shells which you have handed me appear to be the same shells which were turned over to you. None of these shells in the box had been fired; but there was an empty shell — I believe this is the shell here (indicating). Mr. Howerton turned those shells over to me and I turned all of those shells over to you when I ceased to be county attorney."
We deem it unnecessary to determine whether the search of appellant's residence and premises was illegal. The officer's testimony touching the obtaining of appellant's gun and the cartridges found in the house, if erroneously received, would not warrant a reversal for the reason that appellant, testifying in his own behalf, revealed to the jury the same facts as were disclosed by the testimony of the officer. Bonilla v. State, 108 Tex.Crim. Rep., 2 S.W.2d 248; McLaughlin v. State, *Page 108 109 Tex.Crim. Rep., 4 S.W.2d 54; Kelsey v. State,109 Tex. Crim. 275, 4 S.W.2d 548; Kitchens v. State,111 Tex. Crim. 45, 10 S.W.2d 999; Poteet v. State,112 Tex. Crim. 466, 17 S.W.2d 46. Appellant identified the gun as being his property, and testified that he had some cartridges in the house which looked like the cartridges received in evidence.
As to the officer's testimony touching the experiment, it is observed that it was in evidence without objection that the mark on the shell found near deceased's body was below the cap, and that that made by the officer with appellant's gun on one of the cartridges found in appellant's residence was below the cap. This was the question for solution: Had the cartridge found near the body of deceased been fired by appellant's gun? The mark found on the cartridge in the yard added nothing to the proof that the plunger of appellant's gun struck a cartridge at a particular place. The jury had before them the cartridge upon which the experiment had been made, as well as the cartridge found by the body of deceased. They saw where the plunger had struck the cartridges. Appellant's wife testified that when appellant's gun was returned to him by state's witnesses they told appellant that they had a high powered shell in it; that the morning after the gun had been returned appellant shot that same shell at a rabbit in their yard. A state's witness had testified that the shell in the gun at the time he returned it was a Super-X. Appellant testified that he fired his shotgun at a rabbit on his way home from the filling station. He did not say what he did with the shell after he fired the gun. In the light of all of the circumstances, if the shell found on appellant's porch ought not to have been received in evidence, the opinion is expressed that the error is not reversible. Particularly is this true in view of the fact that it is fairly inferable from the record that state's witness Hooper identified the same shell as having been received by him from officer Howerton. His testimony relative to the matter was not objected to by appellant. We quote from Texas Jurisprudence, vol. 4, page 587, as follows: "It is a general rule also that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to, as where the accused voluntarily gave testimony substantially the same as that erroneously received over objection. For example, a judgment will not be reversed because of admission of testimony of officers respecting facts ascertained upon an illegal *Page 109 search where the same facts were testified to by other witnesses or by the appellant himself." Many cases are cited in support of the text, among them being Diaz v. State,112 Tex. Crim. 284, 16 S.W.2d 240, and Hudson v. State,107 Tex. Crim. 330, 296 S.W. 573.
Bill of exception No. 7 shows, in substance, that the arresting officer Howerton, in following tracks from the filling station to appellant's residence, called appellant to the door and told him that he was making a little investigation and wanted to see if he could give him some information; that he asked appellant if he heard any shots down near the filling station; that appellant answered in the negative; that before he told appellant he had found deceased's body, appellant said that deceased was a good old man and that he had been down there about 2 o'clock and not after that. Appellant objected to the testimony of the officer on the ground that he was in custody of the officer and that the provisions of article 727, C. C. P., had not been complied with. Appellant testified that on the occasion in question he went with the officer from his home to the filling station, and that the officer did not have charge of him at the time, but that he just accompanied the officer to the station. The officer testified that he had no intention of arresting appellant when he came to the door and did not feel that the tracks alone were sufficient to justify him in making the arrest. He said he did not decide to arrest appellant until appellant made the statement to him relative to deceased being a good old man. Moreover, he testified that he did not indicate to appellant in any way that it was his purpose to place him under arrest, as it was only his entire purpose to get information. Defendant's own testimony negatives the idea that he believed himself to be under arrest at the time he made the statement in question to the officer. The officer's testimony affirmatively shows that appellant was not under arrest. It is true that the fact that the officer had not taken appellant into custody prior to his conversation with him would not be controlling in determining whether the receipt of the statement was inhibited by the statute. The impression made upon the accused is to be taken into account. Lightfoot v. State, 117 Tex.Crim. Rep., 35 S.W.2d 163. In Burton v. State, 102 Tex.Crim. Rep., 277 S.W. 390, Judge Hawkins, speaking for the court, used language as follows: "Whatever be the intention of the officer, if he had not arrested accused and accused was not apprised of his intention to arrest him at the time the statements are made, they are admissible, if accused did not *Page 110 reasonably believe himself to be under arrest. It is not altogether the intention of the officer that governs the matter."
A careful examination of appellant's contentions leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.