
    BROWN v. STATE.
    (No. 3413.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 10, 1915.)
    1. Criminal Law <§=>600 — Continuance — Absence op Witness — Admissions to Prevent.
    Where, on a trial for homicide, the testimony of one of the two physicians who examined deceased’s body was not materially different j from that which the other physician would have given had he been present, and the state offered to admit that the absent physician would testify as claimed and that such testimony was true, the denial of a continuance was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1342-1347, 1604; Dec. Dig. <§=>600.)
    2. Jury <§=>131 — Examination op Jurors.
    Where the court, in examining a juror who had said that he would not convict upon circumstantial evidence, stated two illustrations to which accused objected, but the juror was excused and the illustrations were not such as could have influenced the jurors selected in passing on the guilt or innocence of accused, there was no error.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. <§=>131.)
    3. Criminal Law <§=>479 — Evidence—Opinion Evidence — Competency op Witnesses.
    A doctor, who had practised medicine for 27 years, had performed major and minor operations in surgery, and when attending medical school had studied surgery and physiology, was competent to testify as an expert witness regarding the effect of a bullet wound in the breast which penetrated the heart.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1067, 1068; Dec. Dig. <§=>479.]
    4. Criminal Law <§=>448 — Evidence—Facts or Opinions op Witness.
    On a trial for homicide in which it appeared that deceased’s body was found in a hall, and that the pistol with which he was killed was found in an adjoining room, the testimony of a witness that he discovered blood prints or finger or thumb prints on the casing of the door leading to such room, that the blood was fresh on the door when he made the discovery the day deceased was killed or the following morning, that accused had a defective thumb, that it looked to have been mashed, was as broad again at the end as it should be, and ran to a point on the right-hand side, and that the blood print on'the board showed that the point of the thumb was extra large and a defective thumb on the right-hand side like he described it, was properly admitted, as the witness did not express his opinion, but testified to facts as witnessed by him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. <§=>448.]
    5. Criminal Law <§=>404 — Evidence—Demonstrative Evidence.
    The' door panel upon which such blood prints were discovered, which was sawed out and preserved, and which was identified at the trial, was properly admitted.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dee. Dig. <§=>404.]
    6. Criminal Law <§=>364 — Evidence — Res. Gestae.
    Where, from the time accused gave the alarm and called a number of people stating that he thought deceased was dead, the minds of those present were directed to ascertaining the mode of death and to finding the weapon with which the killing was done, and accused participated until his arrest in the search for the weapon, which was continued in his presence, evidence that he was nervous while the others were searching the room in which the weapon was found, and that, after it was found and was being taken away with other pistols also found in the same room, he turned pale and flushed up and appeared nervous, was properly admitted as res gestae, though it related to his conduct while under arrest, as time is not the only determining factor as to res gest»; and if all the facts and circumstances show the matters to be so connected as to be part and parcel of the transaction, acts and conduct springing out of and forming a part of it are admissible as a part of the transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. <§=>364.]
    7. Criminal Law <§=>829 — Instructions Covered by Those Given.
    Where, on a trial for homicide, the court defined “malice aforethought,” it was unnecessary to give a requested charge regarding that matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <§=>829.]
    8. Homicide <§>=286 — Instructions—Definition oe Express and Implied Malice.
    Though the degrees of murder have been abolished by legislative enactment, it was not error on a trial for homicide, to define express and implied malice, as murder may be committed upon either kind of malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. <§=>286.]
    9. Criminal Law <§=>1173 — Instructions — Matters Not in Evidence.
    On -a trial for homicide, the refusal of an instruction that the jury should not consider any fact or circumstance not in evidence was not error where it did not appear that they did consider or discuss any fact or circumstance not admitted in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Doc. Dig; <§=>1173.]
    10. Criminal Law <§=>829 — Instructions — Exculpatory Statements.
    Where the statements of accused admitted in evidence were not in the nature of confessions of guilt, but were wholly exculpatory and tended only to show a lack of knowledge of how deceased’s death occurred, an instruction requiring his guilt to be found beyond a reasonable doubt necessarily required a finding that his protestations as to such lack of knowledge were untrue, and no other or further charge on that point was required.
    [Ed. Note. — For other cSses, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829.]
    11. X-Iomicide <§=>250 — Evidence — Weight and Sufficiency.
    On a trial for. homicide, evidence as to whether deceased was killed by accused or killed himself intentionally or accidentally held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <§=>250.] Davidson, J., dissenting. ;
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    M. A. Brown was convicted of murder, and he appeals.
    Affirmed.
    
      Hickman & Bateman, of Stephenville, and McLean, Scott, McLean & Bradley, of Et. Worth, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted by the grand jury of Erath county. The venue of the cause was changed to Hood county, and appellant when tried was convicted of murder, and his punishment assessed at life imprisonment in the penitentiary.

Appellant contends that the court erred in overruling his application for a continuance on account of the absence of Dr. J. R. Sessums. The facts show that deceased, Walter Edwards, was found upstairs in the hall of a store belonging to appellant; that he fell in a crumpled position, and as he lay the cause of death could not be ascertained. Before moving the body both Dr. Bryant and Dr. Sessums were called. When they arrived they had the body moved, and it was then ascertained that death was caused by a bullet wound in the left breast which penetrated the heart. By the evidence, every other theory as to the cause of death is excluded other than that appellant killed deceased or deceased either intentionally or accidentally killed himself. As before stated, the body of deceased was found dead in the corner of the hall near the stair landing; in a room some 29 feet away the pistol, with which the shot was fired, was found between two boxes. The record clearly demonstrates this was the weapon that inflicted the wound. Appellant’s contention is that the circumstances would show, or "raise a reasonable doubt that such state of facts might be true, that deceased while upstairs 'doing some work found the box containing these pistols, and, they being of a novel kind, while experimenting with one of them he himself discharged it, dropped the pistol, and it fell between the boxes, and then deceased turned and walked the distance from this box to near the head of the stairs and fell.

Of course, the state’s, contention is that appellant fired the shot; that the nature and character of the wound would render it practically impossible for deceased to have walked that distance after being shot; that if deceased had either intentionally or accidentally himself fired the pistol, that his clothing and body would have been powder burned; that the range of the ball shows it could not have been self-inflicted, etc.

As Dr. Sessums was one of the physicians who had the body moved, and who made the first examination, and afterwards held a post-mortem examination, it is strenuously insisted in this court that his testimony as to the nature and character of the wound would render it far more probable that deceased could walk and travel the distance from where the pistol was found to where the body was found than would the testimony of Dr. Bryant who was present and testified on this trial. We have carefully read the testimony of Dr. Bryant in the statement of facts, and what it is stated in the motion for a continuance Dr. Sessums would testify if he was present, and we find no material variance.

Dr. Bryant testified that the bullet entered the body between the second and third ribs, not over an inch from the breast bone; that it did not strike a rib on entering the body; that the bullet entered the heart in the upper part of the left auricle, went through the heart, and came out at the lower part of the left ventricle, something like an inch from the tip; that the ball entered the left side of the heart, passing through the left auricle and through the left ventricle, then through the lung, through the dia-pkram, and then through the left lobe of the liver and into the spleen, cutting a little furrow in the tip of the spleen, and struck the eighth rib, dropping into the abdominal cavity.

It is alleged in the application for a continuance that if Dr. Sessums was present he would testify:

“I have been practicing medicine 15 or 16 'years. I am a graduate of the Medical Department of the University of Texas. I took surgery with my medical course. Since I graduated I have done surgical operations, including some major operations. . I remember having been called to look over Walter Edwards after he was killed. I saw him in that position in the corner of the hall right at the door. He was kinder jammed up against the wall like, and he was not laying sprawling, but jammed up, his left limb was drawn up, just about come under the wound, and the right limb was extended and the right arm over the right knee, and he was laying more on his face with his head turned a little to the left. I couldn’t say as to how his right foot was. I remember the blood from the wound stained the leg, and he was laying pretty nearly flat with the left leg under him and jammed up against each wall kinder in the corner, and his hat was kinder under his head (he was kinder facing the wall). I took hold of Edwards first and helped to move him. I didn’t know then what had killed him; that is the first we knew of what killed him. After I moved him I removed his clothing. I looked at his shirt before I moved him. If there were any powder stains there we couldn’t make it out. The hole in the shirt looked like a clear cut (we thought there might be a little powder burn, but we decided there was not; we called that to mind and mentioned it there). We removed the clothing to some extent. We opened the shirt and found the wound, which was located just to the left of the sternum, just to the left of the breast bone, between the second and third ribs. Before we probed we thought the bullet went down from the way the upper edge of the wound looked — the indications were it had gone down. We after-wards held an autopsy and obtained the track of the bullet. We made á center incision right through the center. We began up above where the wound was, came down, made the incision, and then we separated the ribs from the breast bone, and then we cut the ribs along so we could turn them out and expose the vissary of the organs, and after exposing that, we began searching or tracing out the route of the bullet. The bullet entered the left auricle, the edge of it. The heart lay in that position like (witness indicated on himself as to the position of the heart), and struck the left auricle and went through that and came out through the edge of the left ventricle, going through the left side; it punctured the lung, and then the diaphragm, and then through the left lobe of the liver, and tore a furrow through the spleen, and struck the diaphragm and the left rib. Just struck the diar phragm, didn’t go through it any more; but we found the bullet free just bélow the spleen — loose in the abdominal cavity. I took the bullet out. I might have handed the bullet to Will Hallmark — were several there. It strikes me Will Hallmark took the bullet. In my judgment as a physician, the immediate effect of a gunshot wound such as I have described would be hemorrhage or shock or paralysis of the heart. In most cases the subject would collapse. Some say the kind of wound I have described produces immediate paralysis. Some say it pro- ■ duces shock; I couldn’t say. Some wounds through the heart are not fatal as others. I don’t know whether the wound I have described struck sufficiently center to be immediately fatal.”

If there is any material difference in the testimony of the two doctors, as before said, we have been unable to detect it. In addition to this, the state offered to admit that Dr. Sessums would testify as alleged, and that such testimony is true. Under such circumstances, there was no error in overruling the application for continuance. McGrew v. State, 31 Tex. Cr. R. 339, 20 S. W. 740; Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753; Jackson v. State, 48 Tex. Cr. R. 650, 90 S. W. 34.

In the next bill it is shown while J. H. Brazzil, a venireman, was being examined, he stated he would not convict upon circumstantial evidence. The court then examined the juryman and stated two illustrations to which appellant objected. This juror was excused by the court, and, as the illustrations used by the court were not such as could have in any way influenced the jurors selected in passing on the guilt or innocence of appellant, the bill presents no error.

As Dr. W. B. Goodner had practiced medicine for 27 years, had performed major and minor operations in surgery, and when attending medical school had studied surgery and physiology, the court did not err in holding him competent to testify as an expert witness regarding the effect of a wound of the character shown to have caused the death of deceased.

By the record it is shown that Bob Peacock, the constable, was permitted to testify:

“I examined the do'orfacings on all those rooms, and I discovered blood prints or finger prints or thumb prints on the casing of the south door of the northwest room. M. A. Brown has a defective thumb on his left hand. When I found the thumb print or blood mark on the doorcasing, there were several people up there and I mentioned it to them. I afterwards sawed the panel of this door out and brought it to Stephenville and turned it over to the sheriff. (Witness identifies the door, panel just above referred to.) It is now in the same condition it was when I took it away from the building, with the exception that this blood print looks a little dimmer. The blood was fresh on the door when I made the discovery of it. I don’t know whether it was the afternoon of same day that we found Walter Edwards dead in the Brown building that I discovered this blood, or the following morning, but it was one of the two. It appeared at that time to be fresh. The defendant’s thumb looks to have been mashed and is as broad again at the end as it should be. The thumb is sorter run to a point on the right-hand side. The blood print I find on this board is shown that the point of the thumb is extra large, defective thumb on the right-hand side like I described it.”

This blood was found on the doorfacing of the room in which the pistol was found, and which leads into the hall where the dead body was found. This testimony was properly held admissible, and should not have been excluded on the ground that it was an opinion of the witness. He was testifying to facts as witnessed by him, and here we might add there was no error in admitting in evidence the section of door sawed out and identified. Turner v. State, 48 Tex. Cr. R. 585, 89 S. W. 975.

This is a case depending entirely upon circumstantial evidence. The evidence shows that appellant owned a store; that on the day of the homicide deceased was employed to work, and was at work upstairs. Justice Abies was in this store on business with appellant, and while there deceased came downstairs and got a drink of water, returning to his work. As he left the store Justice Abies looked at his watch and found it was 11:30 a. in., only appellant and deceased being in the store at that time. No one else is shown to have entered the store until after the dead body was found — in fact the evidence excludes the idea that any one else was in the store other than appellant and deceased.

Mr. W. H. Sneed testified that he was in business about 150 feet from appellant’s place of business; that he heard the shot that killed deceased, and it occurred at 11:40 a. m., which would make it just ten minutes after Justice Abies left. Mr. Sneed fixes the time definitely by saying he had occasion to go out of his store and looked at his watch.

The evidence shows that about five minutes-after this appellant appeared on the street and called Mr. Faust and others, and said, “Come quick;- I think Walter Edwards is dead.” Several went and found the dead body at the place hereinbefore stated. The evidence makes it clear that appellant was not then arrested and not placed under arrest until he had gone to his dinner and was returning to the store. The county attorney having arrived, he then had appellant arrested. Consequently everything said and done by appellant up to this time was admissible, and we do not understand appellant’s objection reaches any matter that took place prior to this time. In one bill it is shown that after appellant’s arrest he went back to the store, and went into the room where the pistol was subsequently found between the boxes, and L. B. Thomas was permitted to testify that appellant came in the room while they were making a search of the room, and went and stood around these boxes where tlie pistol was later found. That when appellant came in the room and went to these boxes he was “very nervous.” Appellant objected to the statement that appellant was very nervous on the ground “it was a conclusion and did not state what appellant did.” In another bill it is made to appear that subsequent to this time appellant saw them carrying the box, by the side of which the pistol was found, and which box contained five other pistols of the same character, across the street; that he “turned pale and flushed up and appeared very nervous.” To this testimony appellant objected, claiming that the acts and conduct of appellant while under arrest are not admissible. The bills make it clear that no remark or statement of appellant while he was under arrest was admitted, but only his conduct as to being nervous when they were searching the room in which the pistol was found, and when it was found and the officers were carrying it and the box containing five others like it across the street appellant turned pale, his face flushed up, and he appeared to be very nervous. Mr. Wharton in his excellent work on Criminal Law says:

“The effort of the accused to escape or otherwise evade justice is a circumstance admissible in evidence against him from which guilt may be inferred. For the same purpose, confession, prevarication, and embarrassment on the accused’s part, when charged with the crime, may be put in evidence against him, and so of stolidity and indifference, and whatever would sustain an inference as to complicity in the offense charged.”

In the case of Noftsinger v. State, 7 Tex. App. 323, it is held:

“Criminative or inculpatory circumstantial evidence is derived from the conduct of the party accused, and external objects or physical facts with their appearances as indicative of such conduct. Hence, as is well remarked by Mr. Burrill, ‘where a case of suspected crime has become the subject of judicial investigation, and the general fact of the commission of the crime has been ascertained, and particularly where vigorous measures have been set on foot to trace out the individual perpetrator, the idea, now converted into prospect, of discovery, and that becoming a more and more probable event as fact after fact is brought to light, naturally and almost necessarily fills the mind with alarm, particularly where the criminal finds his own person drawn (or is likely to be drawn) within the sphere of investigation. Emotion and agitation exhibited under such circumstances, especially when no charge of guilt has yet been made or insinuated, are regarded, and justly, amongst the most convincing evidences of criminal agency that can be submitted to a human tribunal.' Burrill on Cir. Ev. 466. The court did not err in admitting or in refusing to strike out this evidence. Handline v. State, 6 Tex. App. 348; Roscoe’s Cr. Ev. 18, 19.”

And in the case of Handline v. State, 6 Tex. App. 362, this court held:

“On the trial, John Dobbin, one of the state’s witnesses, proceeded to testify upon his direct examination as follows, to wit: T placed the prisoner at the foot of the coffin.’ The defendant here asked the court to instruct the witness not to state anything the prisoner said or did, or how he acted, he then being under arrest. The court, however, permitted the witness to testify as to what the defendant did, and how | he acted, by permitting the witness to testify as follows, to wit: ‘He showed scarcely any I emotion whatever until the body was raised, by my order, and placed in a sitting position; he then looked down and acted as if he was swallowing with his mouth shut’ The witness was permitted to testify as to the acts only of the defendant. ⅜ '⅜ ⅜ While the confession of a defendant while under arrest shall not, as a general rule, be used against him, the conduct of the party, either before or after being charged with the offense, as indicative of a guilty mind, is proper to be laid before the jury; and Mr. Roseoe says this is a very useful kind of evidence, and one which no judge need seek to withdraw from the consideration of a jury. Roscoe’s Or. Ev. 18, 19.”

In Hart v. State, 15 Tex. App. 230, 49 Am. Rep. 188, this court said:

“As to the competency and admissibility of the matters testified to as evidence, it seems to be now well settled that any indications of a consciousness of guilt by a person charged with or suspected of crime, or who, after such indications, may be suspected or charged with crime, are admissible in evidence against him; and the number of such indications cannot be limited or their nature or character defined. However minute or insignificant they may be, if they tend to elucidate the transaction they should be admitted. Whart. Crim. Ev. (8th Ed.) § 751; McAdory v. State, 62 Ala. 154; Handline v. State, 6 Tex. App. 347; Noftsinger v. State, 7 Tex. App. 301; Burrill on Cir. Ev. 466.”

While the broad rule thus announced has to some extent been limited by the decisions of this court (Nolen v. State, 14 Tex. App. 485, 46 Am. Rep. 247), yet in none of them wher-e the acts and conduct are res gestae of the transaction has such testimony been held to be inadmissible. All the evidence in this case goes to show that, from the time appellant gave the alarm, the minds of all those present were directed to ascertaining first the mode of death, and then continuous search was made to find the weapon, in which appellant participated until his arrest, and then in his presence continued, and it was while this was occurring, and going in the room where the pistol was found, and the carrying it away, caused these manifestations. Time is not alone the determining factor as to res gestae, but if all the facts and circumstances show the matters to be so connected as to be part and parcel of the transaction, and the acts and conduct spring out of and form a part of it, such acts and conduct become admissible as part of the transaction.

In Powers v. State, 23 Tex. App. 67, 5 S. W. 158, this question was again before the court, and the testimony held admissible, the court saying:

“ ‘Res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when relating the events. * * * Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary in fact with each particular case. * * * They need not be coincident as to time if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. In other words, they must stand in immediate causal relation to the act, and become part either of the action immediately producing it, or of action which it immediately produces. Incidents which are thus immediately and unconsciously associated with an act, whether such incidents are doinigs or declarations, become in this way evidence of the character of the act.’ Wliart. Crim. Ev. (Sth Ed.) §§ 262 and 263. Again he says: ‘But we must remember that continu-ousness cannot always be measured by time.’ Id. § 264. And again: Tnstinctiveness is the requisite, and when this obtains the declarations are admissible.’ Id. § ■ 691. See, also, Bradberry v. State, 22 Tex. App. 273 [2 S. W. 592], and Cartwright v. State, 16 Tex. App. 473 [49 Am. Rep. 826]. We are of opinion the evidence was admissible as res gestae.”

The testimony would, clearly be admissible under this case, and under all these decisions and the rules laid down in the textbooks the court did not err in admitting the testimony. The writer individually thinks the rule laid down in the Handline Case is supported by the great weight of the authority, and should be the rule in a case of circumstantial evidence (Wright v. State, 36 Tex. Cr. R. 35, 35 S. W. 287); but it seems to have been otherwise held in Fulcher v. State, 28 Tex. App. 472, 13 S. W. 750.

The court in his charge instructed the jury:
“ ‘Malice aforethought’ is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
“ ‘Malice’ is either express or implied.
“ ‘Express malice’ is where one with a sedate, deliberate mind and formed design unlawfully kills another, which formed design, is evidenced by external circumstances, as preconcerted schemes to do the deceased bodily harm.
“ ‘Implied malice’ is that which the law infers from or imputes to certain acts however suddenly done. Thus when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, or tend to mitigate, excuse, or justify the act, the law implies malice, and the law does not further define implied majice than if the killing is shown to be unlawful and there is nothing in evidence on the one hand showing-express malice, and on the other hand there is nothing in. evidence that will reduce the killing below the grade of murder.”

Having thus defined “malice aforethought,” it was wholly unnecessary to give the special charge requested in regard to that matter, and there was no error in defining both express and implied malice. It is true the degrees in murder have been abolished by legislative enactment, but murder may be committed upon either express or implied malice under the present statute, and a correct definition of those terms is not erroneous.

A special charge was asked that the jury be instructed not to consider any fact or circumstance not in evidence. If the record disclosed they did consider or discuss any fact or circumstance not admitted in evidence, the matter would present error, but no such showing is even attempted- to be made.

The statements of defendant admitted in evidence, made before arrest, were not in the nature of confessions of guilt, but were wholly exculpatory and tended only to show a lack of knowledge of how the death occurred. In requiring the jury to find appellant guilty beyond a reasonable doubt, necessarily required a finding that his protestations as to lack of information as to the cause of death were untrue, and no other or further charge was required on that issue than the one given. The facts relied on by the state to show appellant’s guilt were that they were the only persons in the store; that deceased was killed with a pistol belonging to appellant, found concealed between two boxes; that there, was blood on a paper near the box where the pistols were found; that there was no blood found from the point where the pistol was found to the point where the body was found, except on the doorfacing made by some one placing their hand on the facing, as one might make in passing out; that the peculiar imprint made on the doorfacing showed a peculiar formation of a thumb — a broad thumb, deformed on one side. Appellant is shown to have had that kind of a thumb. That it is not probable that a person shot as was deceased could have gone from the box where the pistol was found to the place where the dead body was found, but that instead death would be almost, if no't instantly, instantaneous. We have studied the record, and it conclusively excludes the idea that any one else other than appellant or deceased fired the shot, and to our minds it authorized the jury to find as positively that it excluded the idea that deceased could have either intentionally or accidentally fired the shot. The range of the bullet as traced show it to have been practically impossible for one to so hold the pistol as to inflict the wound. While it may be said that the evidence to show motive is slight, but in the absence of motive being shown, and in a case of wholly unexplained killing, the homicide has always been held to be murder upon implied malice, and as the jury is now authorized to assess the same punishment whether the killing is upon express or implied malice, we have come to the conclusion we would not be authorized to disturb the verdict.

In this ease the verdict of the jury found the appellant guilty of murder and assessed his punishment at confinement in the penitentiary for life. The sentence, based on this, fixed the punishment specifically at life imprisonment instead of an indeterminate sentence as required by the act of August 18, 1913, p. 4, §§ 1-10 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6088a, 6089, 6090, 6091, 6091a, 6091b, 6091j, 6095b). The sentence will therefore be reformed by this court so that the punishment of appellant will be assessed at the indeterminate sentence and time of not less than five years nor more than for his lifetime. The sentence is therefore reformed in accordance with said act, and the clerk of this court is directed to enter the proper sentence in accordance with this opinion and said law, and certify the same properly to the court below.

The judgment is affirmed.

DAVIDSON, J.

I do not agree to this af-firmance. The facts are not sufficient The evidence is voluminous and a collation of same would serve no useful purpose to our jurisprudence. The circumstances do not meet the requirements of the law of circumstantial evidence. 
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