
    WILLMAN v. STATE.
    (No. 8462.)
    (Court of Criminal Appeals of Texas.
    March 18, 1925.)
    1. Criminal law <§=51 ((4) — Defendant’s failure to offer wife’s explanation of incriminating evidence held corroborative of accomplice,
    "Where witnesses other than accomplice testified that woman’s scream and a shot were heard at time of murder and under circumstances showing sounds to have come from defendant’s house, and further testimony showed that defendant’s wife was at home, his failure to call her as witness to explain incriminating circumstances held to create a presumption of guilt, which is entitled to consideration as corroborative of testimony of accomplice.
    2. Criminal laty <@=3511 (2) — Sufficiency of corroborative evidence determined from all such evidence weighed together. .
    Sufficiency of corroborative evidence, under Vernon’s Ann. Code Cr. Proc. 1916, art. 801, as tending to connect accused with commission of crime, held to be determined by weighing together all such evidence, direct and otherwise.
    
      Appeal from District Court, Hamilton County; J. R. McClellan, Judge.
    On application for leave to file second motion for rehearing.
    Application denied.
    For former opinion, see 268 S. W. 933.
    Callaway & Callaway, of Comanche, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. „
   LATTIMORE, J.

Appellant seeks leave to file second motion for rehearing on the hypothesis that our opinion announces the rule that the burden is on the accused to prové his innocence, and he wishes to further combat what he calls a dangerous, and revolutionary theory. He especially criticizes that part of the opinion which reads as follows:

“That’ a man was murdered in the yard of another, who offers and attempts no sort of explanation when such explanation would be available by witnesses other than himself, would seem of itself to tend, at least, to connect him with such crime.”

A reading of our opinion on rehearing would, seem to make clear the proposition that, after stating a number of circumstances seeming to measure up to the demand of the law of corroboration of an accomplice, we made the statement mow criticized. Inasmuch as we deem it unnecessary to grant appellant’s motion, we, however, elaborate our former opinion upon the particular point involved in the quotation from his motion above set out.

Underhill on Cri'm. Ev., in section 45, says:

“The failure to * * * call a material witness arouses an adverse inference.”

Ruling Case Daw, vol. 8, p. 173, states:

“The failure of a defendant to explain incriminating facts and circumstances raises a presumption that such facts and circumstances are true.”

And again, on page 169, appears the following :

“What is presumed, as long as the presumption remains, need-not be proved; and as to the matter presumed, the burden is on him against whom the presumption exists.”

6 Words and Phrases cites many cases defining “presumption,” and it is stated:

“A presumption of fact is an inference of the existence of a certain fact upon its necessary and usual connection with other facts which are known.”

See, also, 1 Wigmore on Evidence, §§ 272-278.

As a reason for our statement, we again refer to the fact that deceased, in the instant case, was alive at I-Ienry.’s house in the late afternoon as sworn to by Mrs. Henry, her sister, and Henry. The next day his tracks were found going from Henry’s house to that of appellant. They were not found leaving appellant’s house. The dead body of deceased was found ab a point where the nearest house is that of appellant. Appellant’s wife was at his home that night. Henry testifies that she screamed when the fatal blows were struck, and that a pistol was fired. Notwithstanding the testimony of witnesses aside» from the accomplice, that a woman’s scream and a shot were heard about the time of the murder, and under circumstances which reasonably showed the sounds to have come from appellant’s house, his wife is not put on the stand to explain or shed light on these tremendously incriminating circumstances. In Mercer v. State, 17 Tex. App. 452, this court said:

“It was disclosed by the evidence that the defendant’s wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully the occurrence testified about by his two daughters when he got his gun and said he would blow his brains out. She could have testified, perhaps, to many other facts which would have shed light upon this horrible transaction. It was not within the. power of the prosecution to adduce her testimony, because, being the defendant’s wife, she was not permitted under the law to testify against him in this case. He alone could call for her testimony, and compel its production. Her knowledge of the facts, .whatever that knowledge might be, was at his command — was within his reach — and without he produced it, or consented to its production,i it was a sealed book, which no human tribunal had the power to open against him. Under these circumstances we think the prosecuting attorney was justified in the remarks complained of, and that the court did not err in its action in relation thereto.”

Mr. Branch, in section 372 of his annotated P. 0., quotes many authorities supporting the proposition that state’s counsel may comment on the failure of defendant to produqe his wife as -a witness, or upon any omission in her testimony, if she' testifies. Why authorize and approve such comment if her failure to testify or the omission of material testimony from that given, have not probative force? Suppose the accused, being a witness, should refuse to make answer to criminating questions when put to him, Would anyone doubt the strong inference of the truth of the matters thus unanswered? This is in the nature of the suppression of evidence and’is close kin to the destruction thereof, tampering with witnesses, etc., proof of which is always admissible against the accused and may afford strong evidence of guilt.

The suppression of evidence, or failure to produce that' which is known and obtainable and material, when appearing in the, record as the result of the state’s action, has afforded reason for -the reversal of eases by this court, and tbis would Lave especial application in cases of circumstantial evidence.

We do not understand the statutory statement regarding the sufficiency of corroboration, i. e., that it must “tend to connect the accused,” etc., to require that such corroboration be by evidence in the nature of direct testimony. Nor do we understand that its sufficiency can be accepted or rejected by the measure of the individual piece of evidence. All the evidence must be weighed together, and its probative force estimated in much the same sense as we do in a case wholly dependent on circumstantial evidence. Measured by this rule, and considering the fact of the failure of the appellant to produce material testimony which he alone could use, together vsvlth all the other facts and circumstances in this case, led us to the conclusion expressed in the opinion on motion for rehearing.

Leave to file second motion for rehearing is dgnied.  