
    BANKS v. STATE.
    (No. 10529.)
    Oourt of Criminal Appeals of Texas.
    May 25, 1927.
    Rehearing Denied June 22, 1927.
    1. Criminal law @=3511(4) — Footprints pointing to identity of accused as person committing homicide, in connection with other evidence, must be considered with accomplice’s testimony and tended to connect accused with homicide independent of accomplice’s testimony (Code Cr. Proe. 1925, art. 718).
    Evidence of footprints near scene of homicide, coinciding with boots worn by accused and strongly pointing to identity of accused as person committing homicide, taken in connection with attempted proof of alibi, is to be considered in connection with accomplice’s testimony that accused for hire agreed to kill deceased, and if establishing presence of accused at shooting and attempted hiding of gun, tended to connect accused with homicide independent of accomplice’s testimony, under Code Or. Proc. 1925, art. 718.
    2. Criminal law @=3510 — Accomplice’s testimony cannot be considered unless corroborated.
    Neither jury nor court can take account of accomplice’s testimony, in absence of other evidence corroborating accomplice and tending to connect accused with homicide.
    3. Criminal law @=3511(3) — Circumstantial evidence corroborating-accomplice is to be taken collectively.
    In testing sufficiency of circumstantial evidence corroborating accomplice and tending to connect accused with offense, facts which jury is authorized to believe from evidence are to be taken collectively as forming strands in a rope each of which has bearing on all.
    4. Criminal law @=3730(3) — District attorney’s repetition of witnesses’ answers held not error, where court instructed attorney to desist from such practice.
    Bill of exceptions complaining of district attorney’s repeating answers after witnesses, qualified to show that court instructed district attorney to desist from such practice, held not to show error.
    
      5. indictment and Information @^32(1) — Murder indictment, “in the name and by tije authority of the state,” held not insufficient because including the word “the” before the word “authority” (Const, art. 5, § 12; Code Cr. Proo. 1925, art. 396).
    Indictment for murder reading, “In the name and by the authority Qf the state,” held not insufficient as in violation of Const, art. 5, § 12 (Code Or. Proc. 1925, art. 396), requiring prosecutions to be brought “in the name and by authority of the state.”
    6. Homicide &wkey;>!29 — Murder indictment charging that defendant did unlawfully and with maiice aforethought kill deceased sufficiently averred killing with maiice aforethought (Code Cr. Proc. 1925, art. 398).
    Indictment for murder charging that defendant “did then and there unlawfully and with malice aforethought” kill deceased held to sufficiently aver killing with malice aforethought, under Code Cr. Proc. 1925, art. 39S, requiring indictments to be sufficiently certain to enable accused to plead judgment in bar of prosecution for same offense.
    On Motion for Rehearing.
    7. Criminal law <&wkey;l 133 — State witness’s affidavit that district attorney read confession to deceased’s wife and promised her aid held not entitled to weight on motion for rehearing, where not referred to in evidence.
    Where deceased’s wife in murder prosecution was not examined with reference to any statement made by her while in jail to district attorney, nor was any such statement offered in evidence and wife was not agitated or under pressure when testifying, no weight could be given to ex parte affidavit offered on motion for rehearing made by wife’s sister and reciting that she overheard district attorney read confession to wife and promise aid if she helped him, and that wife was then in agitated condition so that no statement of hers could be given credence.
    8. Criminal law &wkey;>I 133 — State witness’s ex parte affidavit cannot be considered on motion for rehearing.
    Ex parte affidavit made by state witness after trial reflecting on credibility and testimony of another witness cannot be considered on motion for rehearing.
    9. Homicide <&wkey;>250 — Conviction of murder held sustained by evidence, defendant shown to have agreed to commit homicide for consideration and connected with crime by footprints and] other evidence.
    Evidence showing defendant agreed for consideration to kill deceased, that his shotgun similar to one used in homicide was found near scene of homicide, that tracks containing peculiarities of boots worn by deceased were traced to and from homicide, together with other evidence, held sufficient to sustain conviction of defendant for murder.
    Appeal from District Court, Payette County; M. C. Jeffrey, Judge.
    Pete Banks was convicted of murder, and he appeals.
    Affirmed.
    1 R. Y. Solomon, Geo. L. Haidusek, and Jno. P. Bhlinger, all of La Grange, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at death.

Prom the testimony of Mrs. C. P. Jones, widow of the deceased, the following synopsis is taken: She and the deceased had been married for about 12 years, though they had been separated part of the time. She had known Banks for about 9 years, he having worked for the family, and also for her and her husband. The deceased was a station agent for a railroad company and lived about a mile from the courthouse. About a month before his death, Jones, over the protest ofl his wife, had destroyed some flower plants in the yard, and on the following day the appellant appeared and noticed the destruction of the plants and made inquiry about them. Upon receiving information that they were dug up by the deceased, the appellant remarked to the witness: “He treats you dirty; why don’t you freeze him out?” The witness replied: “I would if I could.” Appellant then said: “Well; you give me $150 and I will do it.” To this she assented, and he said all right — that he would do it. Appellant was at the home of the witness about noon of the day on which the homicide took place. She told the appellant that he had failed to do what he had promised to do, and he said: “I will do what I said I would; I' will get him.” The witness did not see him again until after the deceased was killed.

On the evening before his death Jones went to town, and returned about 10 o’clock. He was sitting in his room reading the daily paper. The witness went out of the room to go to bed when she heard an explosion, which she thought was the lamp. Immediately aft-erwards she heard another, which she identified as the report of a gun. She entered the room in which she had left her husband and found him lying on the floor. She went to one o'f her neighbors and had the sheriff and a doctor called. She said she did not know what had happened. Upon the arrival of the sheriff, the deceased was found in his home dead. There were two wounds from shots fired from a shotgun loaded with “BB” buckshot. Some of the wadding entered one of the wounds. The state introduced evidence that the appellant owned a single-barrel shotgun.

The home of the appellant was some seven miles distant from the scene of the homicide. There was evidence from a number of witnesses and from the appellant that he was in the town near which the deceased lived on the night on which the deceased was killed. The circumstances led to the conclusion that the fatal shots were fired from a position outside the house, through a screened window, the sash of which was raised. There were tracks of a person wearing boots on the railroad right of way and near the home of a woman named Peyton, who was a relative of the appellant, which tracks also led to and from the home of the deceased. The appellant’s presence at the Peyton home was established by the testimony of both the appellant and the state’s witnesses. He came to her house on .horseback and left the horse on her premises until a time near that upon which the fatal shots were fired. The shots were heard by several witnesses, who agreed with the alleged accomplice that they were fired at about 10 o’clock at night. The Pey-ton woman retired before the appellant returned to her house and got his horse. He testified that he got his horse after the shots were fired. His testimony, however, accounting for his presence and movements after his arrival, are not inconsistent with the testimony of the Peyton woman. The tracks mentioned were, according to the officers, plainly visible, and the ground, being in a soft condition, was such as would retain the impression, and indicated that in approaching the house of the deceased the person making: them was walking, and that while leaving it he was running. They led to a point near a gravel pit in which some water had accumulated. There was subsequently found in the gravel pit a 12 gauge single barrel shotgun. It had been taken apart and was in three parts, viz., the stock, the barrel, and the pin. This shotgun was discovered by accident, and was definitely identified by several witnesses for the state as belonging to the appellant. His testimony, while not specifically admitting the ownership of the gun, was not to the contrary, but he presented the theory that his gun had been lost while lying in his automobile some months previous to the homicide. This fact was controverted by the testimony of witnesses who claimed to have seen the gun in the possession of the appellant a few days before the homicide took place. Appellant testified that he heard the shots fired while walking on the railroad right of way. According to his testimony, however, as we understand it, he was not at the places where the tracks were found. The tracks were made by a person wearing rubber boots. There were peculiarities growing out of the make of the boots and the wearing thereof which rendered the tracks distinguishable from those made with another boot. The appellant admitted that he was wearing rubber boots at the time of the homicide, the same that were worn by him at the time of his arrest. Those worn by him corresponded in size and peculiarities with those which made the tracks, and were fitted into the tracks which were found at the place where the assassin stood, as well as in approaching and leaving the house. The appellant was shown to have been at the Jones home on the day of the homicide and about the time claimed by Mrs. Jones, and also on the other occasions as related by her. 1-Ie was acquainted with the Jones’ surroundings, including the situation of the house, rooms, doors, and windows.

Against the judgment the point is made in¡ the brief that the testimony is not sufficient to support the verdict. All of the testimony in the case, including that of the accomplice witness, Mrs. Jones, is but evidence of facts from which the jury was called upon in the court’s charge embracing the law of circumstantial evidence, to determine the identity of the assassin of the deceased.

This court has said that footprints unaccompanied by other supporting facts would not be sufficient to identify one accused of. crime. See Warren v. State, 52 Tex. Cr. R. 218, 106 S. W. 132. Footprints, depending! upon their character, are of varying degrees of cogency in hearing upon the identity of the offender. From Burr-ill on Circumstantial Evidence, p. 82, we take the following:

“Where impressions of human footsteps on earth or snow, having certain peculiarities, are found on comparison to correspond accurately with the shoes of a particular individual, having precisely the same peculiarities, the inference or presumption is that such impressions were actually made by the shoes of such person, leading to the further inference of the presence of such person at the place where the footmarks are found.”

And from page 267, the following:

“Where certain peculiarities are observed which at once distinguish the impressions from all others, an exact correspondence, verified by the test of comparison, becomes of the highest importance.”

In the present instances, the evidence going to show that the footprints at the places where the assassin stood and those leading to and from the place, are of unusual strength pointing to the identity of the appellant. The conceded and undisputed facts show that the appellant was at the Peyton home, about a mile from the home of the deceased, a short time before the fatal shots were fired; that he left the Peyton home before the shots were fired; and that he returned there at a later time and got his horse. He was arrested the morning after the homicide. The boots which he wore coincided in size and in character with those with which the tracks were made. The ground was sufficiently soft and of a character to receive andi retain the impressions made. Peculiarities due to the wearing of the boots were observable in the tracks, and the boots worn by the’ appellant at the time of his arrest were placed in the tracks and fitted with exactness. These conditions, as revealed by the evidence, not only applied to the tracks leading! from the Peyton home, but to that of the de-l ceased and those in the yard of the deceased! and near the window through which the fatal shots were fired. They apply likewise to the tracks leading to the gravel pit in which was found the gun which belonged to the appel’ lant, which, according to the state’s testimony and contrary to his own, had been seen in his possession but a short time before the homicide. Death of the deceased resulted from the discharges from a gun of the same character as that mentioned. Appellant admittedly was in the neighborhood of the home of the deceased, both before and after the homicide. These matters, taken in connection with the attempted proof of alibi, are to be considered in connection with the testimony of the accomplice witness, the substance of which is that the appellant, for hire, had agreed to kill the deceased. It is true that neither the jury nor this court could take account of her testimony in the( absence of other evidence corroborating hen and tending to connect the appellant with the homicide. If the circumstances warrant the conclusion that he was present when the faJ tal shots were fired, that he took his gun to' pieces and left it in the gravel pit, then it) would seem that there were facts independent of the accomplice’s testimony tending to' show that her testimony of prearrangementi was true and tending to connect the accused with the commission of the homicide. Article 718, O. O. P. 1925. There are. other facts coming from testimony aside from the accomplice which might he considered, such as the familiarity of the appellant with the premises of the deceased and with his habits, and the presence of the appellant ¿t the home of the deceased upon the occasion upon which, according to the accomplice’s testimony, the appellant had promised to kill the deceased, the time and place of the homicide, the condition of the window through which the shots were fired, and the presence of no person save the accomplice, the deceased, and the assassin at the time the shots were fired.

In testing their sufficiency under the law of circumstantial evidence, the various facts which the jury was authorized to believe from the evidence are to be taken collectively as forming strands in a rope each of which has a bearing upon all. See Parish v. State, 85 Tex. Cr. R. 75, 209 S. W. 678. Thus considered, this court does not feel justified in overturning the verdict of the jury, which has the sanction of the learned judge who presided at the trial.

In bill of exceptions No. 1' there is complaint of the refusal of the court to continue the ease. The motion is quite brief and is based upon the averment that sufficient time had not elapsed for the proper preparation of the defense of alibi upon which reliance would be had, the appellant having been confined in jail in the time intervening between the alleged commission of the offense and' that of the trial. In qualifying the bill the court stated that at the beginning of the trial' counsel was told that he would be accorded’ all the time desired by them to ascertain the names and location of witnesses for the defendant ; that they thereafter made out a list of witnesses all'of whom were summoned and' were present; that the same privilege was again given them at the end of the state’s testimony with the assurance by the court that he would have summoned any additional witnesses desired and would hold the ease pending until their attendance could be secured; that no others were then called for; and a like announcement was made to them at the end of the testimony. The trial lasted for three days. The statement of facts shows that a number of witnesses testified for the appellant on the issue of alibi.

In bill No. 2 it appears that counsel for the appellant objected to the practice of the district attorney in repeating the answers after the witnesses. The court instructed’ him to refrain from doing so. The transcription of the stenographer’s notes touching this matter was attached to the bill as a qualification, and it appears therefrom that appellant’s counsel stated that state’s counsel was repeating the answers, and that the court told him not to repeat the answers. We fail to find aught in the bill that would warrant any just ground of complaint.

The indictment reads as follows:

“In the Name and by the Authority of the State
of Texas:
“The grand jurors for the county of Fayette, state aforesaid, duly organized as such at the April term, A. D. 1926, of the district court for said county, upon their oaths in said court, present that Pete Banks and Ella. Jones on or about the 8th day of May, one thousand nine hundred and twenty-six, and anterior to the presentment of this indictment, m the county of Fayette, and state of Texas, did then a/nd there-unlawfully and with malice aforethought kill C.. P. Jones by shooting him with a gun, against the peace and dignity of the state.”

In his brief appellant’s counsel attacks the indictment as insufficient upon two-grounds : First, that the beginning is not in. the language prescribed by the Constitution. In article 5, § 12, of the Constitution of Texas, we find the following quotation: “Aik prosecutions shall be carried on in the name and by authority of the state of Texas.” The position taken by the appellant is that by the use of the word “the” in the beginning before the word “authority” the indictment is-vitiated. Prior to the revision of the Code of Criminal Procedure of 1925, touching the requisites of an indictment, it was declared-that “it shall commence, ‘In the Name and-by the Authority of the State of Texas.’ See Vernon’s Tex. Crim. Stat. vol. 2, art. 451,. p. 192., The use of this language was prescribed in Willson’s Criminal Forms, and hasr often been sanctioned by this court. In tbe' revision of 1925, tbe language used is, “In tbe Name and by Authority of tbe State of Texas.” See article 396, O. O. P. 1925. It was specifically beld in Porter’s Case, 86 Tex. Cr. R. 23; 215 S. W. 201, that tbe use of tbe word “tbe,” as it is used in tbe present instance, did not adversely affect tbe validity of tbe indictment. See, also, Weaver v. State (Tex. Cr. App.) 76 S. W. 564. In tbe previous case of Moss v. State, 60 Tex. Cr. R. 268, 131 S. W. 1088, there was a like bolding with reference to tbe use of thé word “of” after tbe word “name.” Additional precedents to tbe same effect are collated in Vernon’s Ann. Const, of Texas 1925, vol. 1, p. 372. Upon reason and authority we are constrained to conclude that the criticism of tbe indictment mentioned is not tenable.

It is claimed that tbe words underscored in the indictment, quoted above, do not constitute a direct averment that tbe accused “did with malice aforethought” kill tbe deceased. Tbe statute, article 398, C. C. P. 1925, reads thus:

“The certainty required in an indictment is such as will enable tbe accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

Tbe averment in tbe indictment is regarded as conforming to this requirement of tbe statute. We refrain from citing precedents. However, we refer to Vernon’s Tex. O. O. P. 1925, vol. 1, p. 264, for collation of authorities ; also to Branch’s Ann. Tex. P. C. § 2058.

Tbe judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant’s amended motion for rehearing has attached thereto tbe affidavit of Mrs. Scott, a sister of Mrs. Jones, widow of deceased, who testified for tbe state upon tbe trial of this case. In tbe affidavit it is stated that after tbe homicide affiant made several efforts to see Mrs. Jones, who was confined in jail, but was prevented by the sheriff and district attorney’s depart-^ ments. When she finally got to see Mrs.' Jones she heard tbe district attorney read to her said sister a purported confession in regard to which, after same had been read, Mrs. Jones said that tbe confession was not true; whereupon tbe district attorney said:

“I am going to use it to get the clutches on that negro. Woman, don’t try to uphold that negro. If you help me now, I will help you later.”

Further, tbe affidavit states that from childhood Mrs. Jones has suffered from epilepsy, is frail physically, is very credulous and easily overreached and persuaded, and when in a state of excitement and under pressure will admit or deny anything suggested to avoid conflict, commotion, or argument; and, further, the affidavit states that when Mrs. Scott saw her sister in jail at the time spoken of the latter was extremely agitated, weakened and nervous, so much so that any statement made by her at that time would deserve no credence.

We are somewhat at a loss to know what effect, if any, appellant expects said affidavit to have upon his motion for rehearing. An inspection of the record discloses that Mrs. Jones was not asked in reference to any statement made by her while in jail, to the district attorney, nor was any statement made by her while in jail offered in evidence. We find nothing in the record tending to show that at the time Mrs. Jones testified in this ca§e she was under pressure or excited or nervous or agitated in any way. No attack was made upon her credibility, nor was there any effort made to show she was in any way. or from any cause, not deserving of credit. We are forced to say that from no angle of the record before us do we find a place where weight can be given to said affidavit, even if such.ex parte affidavits could be considered by us, which is not the case.

We have again considered the facts in this case. They seem overwhelmingly to corroborate the accomplice and to point to appellant as the party who fired the fatal shots. Mrs. Jones testified that appellant agreed with her, in substance and effect, that he would do away with deceased for $150; that he promised on the day Mr. Jones was shot to do it that day. The killing was that night. Appellant was seen in the vicinity that night. He owned a single-barrel shotgun. Deceased was killed by being shot with a shotgun. Appellant’s shotgun was found not long after the homicide in a nearby pool of water. An empty shotgun shell was found in the pool. The next morning after the homicide appellant was found wearing rubber boots having peculiarities in the heels and soles. It had been raining prior to the homicide, and the ground was soft and damp. Tracks of the boots found on appellant were traced to the wind'ow of the room in which deceased was sitting when shot. Two holes were through the screen window. Two reports of the gun were heard by Mrs. Jones and other witnesses. The boots of appellant were fitted in the tracks at the window and going to and from same, and fitted perfectly. Appellant’s admission that he was in the town where deceased lived on the night of the homicide and that he had on the same boots found worn by him the next morning was in evidence. Many other facts and circumstances appear in the record corroborating the testimony of Mrs. Jones. We are only convinced the more after our re-examination of the record of the sufficiency of the testimony, and being unable to agree with the contentions made by appellant, the motion for rehearing will be overruled. 
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