
    ISRAEL v. STATE.
    (No. 6238.)
    (Court of Criminal Appeals of Texas.
    May 4, 1921.
    Rehearing Denied May 25, 1921.)
    I.Criminal law &wkey;>448(2) — Testimony oil experiment held not objectionable as conclusion of witness.
    In homicide case, where deputy sheriff was killed in jail, and certain witnesses testified-that at the time of the shooting they crawled under their bunks, testimony of sheriff that he went into the cells and placed himself both on and under said bunks in about the1 positions testified to by the witnesses, and that from each of said bunks he could see the place where the struggle occurred, and where deceased was shot, was not objectionable, as an opinion of the witness, no question being raised as to the correctness of the positions taken by the sheriff in his experiments.
    2. Homicide <&wkey;30(l) — One engaged in Jail delivery guilty of murder, though killing was done by another.
    Where act of killing deputy sheriff was one of rfie reasonable consequences of an attempted jail delivery, one taking part therein was guilty of murder, though there was no evidence of an express agreement to take the life of the deputy.
    On Motion for Rehearing.
    3. Criminal law <&wkey;45l (2) — Testimony as to result of experiment held mere shorthand rendition of facts.
    Testimony of witness “I have made an examination to see whether or not a man sitting on the top bunk * * * could see, * * * and I find that you can” and “one sitting in that position could see what took place in front of the door; a person or prisoner, if they are under the bunk, * * * could look out through the cell door and see one or more persons in front of the door,” held but a shorthand rendition of the facts representing the result of experiments made by the witness, and not objectionable as opinion evidence, there being other evidence descriptive of the interior of the jail and photographs portraying its condition.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Jordan Israel was convicted of murder, and appeals.
    Affirmed.
    W. E. Rogers, of Marlin, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Falls county of the murder of Oscar Sharp, and his penalty fixed at death.

This is a companion case to that of Jose Flores v. State, 231 S. W. 786, this day decided by this court. The facts are substantially the same in each case, except in so far as they are detailed by the respective appellants. Mr. Sharp, deceased, was deputy sheriff and jailer of Falls county. Appellant, Jose Flores, Pete Sanchez, and a number of other persons were prisoners in said jail at the time of the homicide. According to appellant’s testimony, there had been a plan on foot, and discussed by a number of said prisoners, having for its object a jail delivery, for some time. Mores was a trusty, and upon him rested the burden of taking the initiative in the execution of said plan. On the occasion in question deceased came up to feed the prisoners at noon. After opening the door to the run-around, which was called by the witnesses the “bull-pen,” deceased stood holding his keys while Mores came to where he could get the food and convey it to the prisoners. As Mores approached deceased, he sprang upon him, and seems to have pinned his arms down, at the same time getting hold of the pistol of deceased. At almost the same moment appellant and Sanchez grappled with deceased. The state’s witnesses testify that, while appellant and Sanchez held deceased, appellant having him by the throat and Sanchez by the legs, Mores stepped back and shot deceased with the latter’s pistol, which he, Mores, had obtained in the struggle. Another shot was fired by Flores, and the death of Mr. Sharp was the speedy result.

There is but one bill of exceptions in in this record. From the testimony of some of the state witnesses, it appeared they were sitting on their bunks in the jail when the first shot was fired, and there is testimony indicating that after the first shot was fired one or two of said witnesses got under their bunks. However, they stated that from their positions they could see what was taking place between Mr. Sharp and his assailants. There seemed little or no dispute in the testimony as to where deceased was located at any time during the fatal occurrence. The question being raised as to the ability of said state witnesses to see what took place from on their bunks and under their bunks, the sheriff of the county, Mr. Moore, was permitted, over objection, to state that he had gone into the said cells and placed himself both on and under said bunks, in about the positions testified to by said witnesses, and that from each of said positions he could see the place where the struggle occurred, and where deceased was shot. The only objection to this testimony appearing in said bill of exceptions was that it called for a conclusion and the opinion of the witnesses. No question was raised as to the correctness of the positions taken by Mr. Moore in his experiments, and no other objection was raised, except as stated. This is by no means a new question. Mr. Branch, in his Ann. P. C. § 128, collates many authorities upholding the admissibility of evidence as to the results of such experiments, if made under conditions similar or approximately similar to those existing at the time under investigation. We see no error in the action of the trial court in overruling the objection made and in refusing the special charge instructing the jury not to consider such testimony.

Appellant insists that the evidence failed to show such acting together as would ¡ ¡ make him guilty as a principal, it being conceded that the fatal shot was fired by Jose Flores, and not by appellant himself. The charge of the court was in the approved form, stating that the jury must find from the evidence beyond a reasonable doubt that Mores, with malice aforethought, shot and killed deceased, and that appellant was present, and, knowing the unlawful intent of Flores, aided him by acts or encouraged him by words or gestures to so shoot deceased, before a conviction would be justified. The court also submitted the law applicable to appellant’s contention that he did not know of any purpose on the part of Mores to kill deceased, or inflict upon him serious bodily injury, and the jury were told that if appellant did not agree to take the life of deceased, and that he did not intend, or know of any intent on the part of Mores, to do more than to seize and lock up deceased, or if they had a reasonable doubt as to such being his attitude in the case, the jury should acquit A review of the facts at any length would be of no value. There is no question from the testimony of all the state witnesses but that, at the time deceased was shot by Mores, appellant had him by the throat and Sanchez had him by the legs. This would appear to make it conclusive that Flores and appellant acted together in the commission of the offense. Appellant admitted, on cross-examination, that Flores had gotten the pistol of deceased from him at the time he (appellant) grabbed deceased. He also admitted that Mores had said before the difficulty began that if he got hold of the gun of deceased and anybody came up to help him he was going to shoot him. The act of Flores in shooting deceased would appear to be one of the reasonable consequences of the admitted design of the parties; and, if this were true, it would make appellant guilty, though there be no evidence of an express agreement to take the life of deceased. Kirby v. State, 23 Tex. App. 13, 5 S. W. 165; Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901; Isaacs v. State, 36 Tex. Cr. R. 505, 38 S. W. 40. Upon what appears to be a fair presentation of the law applicable to the facts, the jury have concluded all of the issues submitted to them against appellant, and we see no reason to disturb their verdict.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing, appellant says, in substance, that he does not controvert the correctness of the ruling of the trial court and this court of that part of the testimony of the witness Moore wherein he described what he saw from the positions he took in the jail when experimenting, but insists that a part of Moore’s testimony consisted of his opinion; that is, where he used the expressions:

“I have made am examination to see whether or not a man sitting on the top bunk * * * could see, * * * and I find that you can.”
“One sitting in that position could see what took place in front of the door. A person or prisoner, if they are under the bunk, * * * could look out through the cell door and see one or more persons in front of the .door.”

These expressions of the witness Moore were in connection with his description of what he did while experimenting to determine whether it was possible to observe the movements of those connected with the tragedy from positions in the cell which were occupied by certain witnesses who were inmates of the jail at the time of the homicide, and who, by their testimony, declared that they saw the appellant and others engage in the conflict which resulted in the death of the deceased.

We hardly think it sound to characterize the testimony given as opinion testimony. It but represented the result of the experiment made by the witness. It is said by a text-writer:

“When the opinion is the mere shorthand rendition or crystallization of the facts, then the opinion can be given, subject to cross-examination, as to the facts on which it is based.” Wharton’s Crim. Evidence, vol. 1, § 458.

On the trial, there was evidence descriptive of the interior of the jail where the deceased was killed. There were also photographs portraying its condition. The witness Moore testified, describing in detail the various positions he took, and declared that from that he could see into the corrider, and in connection therewith made also the statements quoted.

The part of the evidence complained of, we think, was but a shorthand rendition of the facts, within the meaning of that term. The precedents in this state appear to support this view. This is notably true in the case of Martin v. State, 40 Tex. Cr. R. 666, 51 S. W. 912. The central controverted fact was whether the shot was fired from the window of appellant’s house or from a point in his yard. Various experiments were made, and the court disposed of the legal questions presented in the following language:

“After detailing these experiments, defendant proposed to prove by him that after making these experiments the shot holes in the fence could not have been made by any one firing from the window as testified by the state’s witnesses. We believe, under the circumstances of this case, this testimony should have been, admitted. It is sometimes practically impossible for the witness to detail facts and circumstances so as to convey a correct idea of the facts sought to be proved by him, as, for instance, comparing the tracks upon the ground with the shoes found upon the accused. This is denominated by the writers as being a shorthand rendering of the facts, and under such circumstances this character of testimony is generally admissible.”

See, also, Hamilton v. State, 74 Tex. Cr. R. 219, 168 S. W. 538; Crumes v. State, 28 Tex. App. 516, 13 S. W. 868, 19 Am. St. Rep. 853.

We are unable to concur in the view that, under the record as presented, error is shown to have been committed in receiving the testimony complained of.

The motion is overruled. 
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