
    ANDERSON v. STATE.
    (No. 7511.)
    (Court of Criminal Appeals of Texas.
    April 4, 1923.)
    1. Homicide &wkey;sI66(8) — Sexual relations of accused and victim’s wife admissible on issue of motive.
    Evidence of sexual relations between defendant and the wife of the victim at the time of the killing is available to the state on the issue of motive.
    2. Homicide &wkey;ol66(8)— Evidence of past sexual relations between defendant and victim’s wife admissible.
    In a murder prosecution, evidence of past sexual relations between defendant and the victim’s wife was admissible.
    3. Criminal law <&wkey;1169(9) — Admission of evidence as reflecting opinion of sheriff held un-' important.
    In a murder prosecution, where defendant admitted killing deceased, and there was evidence that the shooting took place on a path followed by deceased while going home from his father-in-law’s house, and none of the testimony detailing the killing was controverted, in view of testimony that some of the shots took effect in deceased’s side, testimony of the sheriff that marks on the ground showed that defendant, at the time he fired the shot, was to the side of deceased, objected to" as reflecting witness’ opinion, was unimportant.
    4. Homicide <&wkey;250 — Evidence held to show murder.
    Evidence held to show that killing of deceased when approaching defendant and deceased’s wife immediately after an act of sexual intercourse was murder.
    5. Homicide &wkey;>354 — Sentence of 99 years in penitentiary lyithln jury’s discretion.
    Ninety-nine years in the penitentiary as punishment for murder held within the jury’s discretion.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    George Anderson was convicted of murder, and he appeals.
    Affirmed.
    
      ' Florence & McClelland,' of Gilmer, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 99 years.

Appellant’s confession was introduced in evidence, in which he said that he had spent the day at the house of Will Talley; that in the evening after dark he left that house in company with the daughter of Tal.ley, who was the wife of the deceased and whose name was Judy Bell Burse; that they took a gun with them and went to the pasture, where they had intercourse; that afterwards they were sitting together talking when the deceased, Jessie Burse, came up the path and was shot by the appellant. He and Judy Bell then picked up the body of the deceased and carried it to a thicket about 400 yards distant. It was a dark night, and the deceased was about 60 feet distant when he was shot. He had a stick in one hand and a pistol in the other.

Appellant, in his testimony on the trial, after stating that he and the wife of deceased went into the pasture and had intercourse three times, testified as follows:

“The last time I was down there right close to the plum thicket, down there close to the house, about a hundred yards back to the house, and I had got her that far, and we stopped again, and just as I was getting through the last time she said, ‘There’s somebody with a gun.’ I just jumped up and looked, and he was right on me, and he just throwed the pistol on me that way, and said, ‘Oh, yes, God damn you, I have got you,” and when he done that, of course, I just like any other man would do to protect myself, I shot. She insisted on me taking the gun to kill her father a rabbit, that’s why I taken the gun.”

Complaint is made of the refusal of the court to instruct the jury that the fact that appellant had sexual intercourse with the wife of the deceased could not be considered as any evidence of guilt. The merit of this contention is not discerned. The relations between the appellant and the wife of the deceased'was available to the state upon the issue of motive. Rice v. State, 54 Tex. Cr. R. 149, 112 S. W. 299; Haley v. State, 84 Tex. Cr. R. 630, 209 S. W. 675, 3 A. L. R. 779.

Upon the same principle we regard the complaint of the admission in evidence of sexual relations between the appellant and the .wife of the deceased on other occasions as untenable.

Complaint is made of the admission of certain testimony, of the sheriff on the ground, that it reflected the opinion of the sheriff upon an unauthorized subject. The sheriff testified that upon learning of the homicide, he went to -see. the body. The locations of the wounds were described by him and buck-shots were used. The deceased was struck in the side, one shot striking him in the “sink of the neck” and a few shots in the upper part of the arm. The witness said:

“The shots looked like they entered the body coming from an angle, about parallel this way, I reckon, the best I could tell.”

From the body of the deceased the sheriff went to the place where the homicide took place. He there found a place on the ground where a person had apparently fallen. There was a print of a hand on the ground; there was also gun wadding; and a short distance away was a print, apparently of a knee on the ground. The wadding was at an angle, which the witness illustrated. A map was drawn and exhibited to the jury. Tracks of a man and woman were found, and the location fixed upon the map. The gun wadding was in direct line between the place where the knee prints and the shoe prints were found and the place where the man had. fallen.

The testimony to which objection is addressed, as set out in the bill, is this:

“Where the knee prints and tracks were on the ground and the course of the wadding from the gun, and also from the range of the bullets entering the body of the deceased, showed that defendant, at the time he fired the shot which-killeti the deceased, was to the side of the-deceased.”

The judge, in approving the bill, makes reference to a certain page of the statement of facts for a statement of the circumstances-under which the testimony was received. Taking note of the fact that appellant admitted that he shot and killed the deceased and the uncontroverted evidence that the shots took effect in the side of the deceased,, the ruling of the court, if erroneous, is not important. Moreover, the physical facts detailed by the witness lead to the same conclusion as that which he expressed. Steagald v. State, 24 Tex. App. 207, 5 S. W. 853; Branch’s Ann. Tex. P. C. § 1853. The shooting took place on a path which was-followed by the deceased in going from the-home of his father-in-law Talley to his own-home. He left the house of Talley about 12 o’clock at night, and the shot was fired, soon thereafter. None of the testimony detailing the circumstances revealed by the-state witnesses was controverted. There-was testimony that appellant had stated that the deceased had followed him to town, and that if he ever crossed him, he was going to-kill him. Appellant did not disclose the homicide. It seems that the body of the deceased was found by accident.

There was also evidence to the effect, that the deceased had whipped his wife and that appellant said that “he was going to get. his ‘meanness on’ and kill the black son of a bitch.” . ,

The jury was Instructed concerning the issues in the case in a manner which is satisfactory to the appellant. The evidence is sufficient to show that the offense was murder; and the amount of punishment as fixed was within the discretion of the jury;' No errors are committed in the trial of the case which would warrant a reversal of the judgment It is therefore affirmed. 
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