
    GILBERT v. STATE.
    (No. 5109.)
    (Court of Criminal Appeals of Texas.
    June 4, 1919.
    On Motion for Rehearing,
    1. Homicide i&wkey;>169(8) — Statement by defendant AS TO PRESENCE OF DECEASED AT CHURCH SHORTLY BEFORE KILLING ADMISSIBLE.
    In a prosecution for a murder, committed soon after deceased and defendant left a church, evidence that while in the church defendant said to the witness, “He is here, isn’t he?” such statement, having reference to deceased, the witness having knowledge of a previous difficulty between them and having conversed subsequently with defendant upon that subject, was admissible as circumstantial evidence showing that defendant took notice of the presence of deceased.
    2.,Criminal law &wkey;1169(2) — Admission of HEARSAY EVIDENCE HARMLESS WHERE SAME EVIDENCE CAME FROM OTHERS WITHOUT OBJECTION.
    In a prosecution for murder, resulting from a blow with a club, the admission of evidence that an eyewitness was asked some five minutes later, and after the assailant had run away, if he knew who struck the blow, and he stated he did, if hearsay, was not reversible error, where the same evidence came without objection from other sources, and the appellant in developing the ease made it pertinent as bearing upon the credibility of witness by trying to show that the witness had stated that the assailant was one other than defendants a reversal not being authorized by the admission of competent and relevant evidence coming out of its order.
    
      3. Homicide <©=3170 — Witnesses <@=3318 — Evidence not inadmissible as bolstering UP TESTIMONY OE UNIMPEACHED WITNESS.
    Where -witness testified that he heard a party running through a 'field on the night of the murder, subsequent evidence showing there were tracks of a person running across the .field and also describing tracks corresponding to those which would have been made by the witness claimed to have been in the field, was admissible upon the question of the identity of the slayer, and not subject to the objection that it was to bolster up the testimony of an unim-peached witness.
    4. Homicide <@=3268 — Identity op stick used QUESTION POR JUEY.
    In a prosecution for murder committed by striking deceased with a stick, in which the indictment described the stick with unnecessary particularity, evidence held such that the identity of the stick and its dimensions as meeting those set out in the indictment were questions for the jury.
    5. Homicide <&wkey;178(2) — Rejection op offer TO PROVE DECEASED’S DEPUTATION FOB VIOLENCE NOT ERROR.
    Although, where the evidence is wholly circumstantial, testimony showing the opportunity and motive of persons in such proximity to the murder as to render the fact of weight in determining the identity of the slayer, or in excluding the accused, should be received, yet, where a witness positively identified defendant as the party who struck the fatal blow, it was not error to reject defendant’s offer to prove deceased’s reputation for violence in an attempt to show that one other than accused had opportunity and motive to commit the offense.
    6. Criminal law <&wkey;413(l), 419, 420(8)— Hearsay and self-serving declarations INADMISSIBLE.
    In a prosecution for murder, it was not error to refuse to receive appellant’s proof that on a different occasion, and some time subsequent to that on which defendant had uttered a threat against deceased, the defendant said to a third party deceased cursing him hurt the deceased worse than defendant; such evidence being hearsay and self-serving.
    7. Criminal law &wkey;419, 420(10) — Witnesses <@=5383 — Impeachment of witness upon collateral issue properly denied..
    The offer of defendant to prove that one witness had told another witness that defendant’s brother, who was under arrest, was not present at the time of the homicide, was properly rejected under the rule against hearsay and against impeachment of a witness upon a i collateral issue.
    On Motion for Rehearing.
    8. Homicide <&wkey;142(7) — Variance between indictment and proof as to identity of WEAPON IMMATERIAL.
    In a trial for murder committed with* a stick, which the indictment described with unnecessary particularity, the trial court correctly instructed the jury that it was sufficient if they believed the proof showed that the stick used was substantially the same as described in the indictment, in view of the rule that proof is sufficient, if it shows that the weapon charged in the indictment and the one proved to have been used are such that the nature and result of their use would be the same.
    9. Criminal law <&wkey;1174(5) — Evidence from a juror received by jury after retirement GROUND FOR REVERSAL.
    In view of Vernon’s Ann. Code Or. Proe. 1916, art. 837, providing that in a felony case a new trial shall be granted, “where the jury, after having retired to deliberate upon a ease, have received other testimony,” and it appears that an injury may have resulted, where a juror discussed facts known to him concerning the place where the murder was committed, the court will not speculate upon its effect upon the the jury, but will reverse the case.
    10. Criminal law <&wkey;956(13) — Sufficiency OF EVIDENCE THAT JURY RECEIVED MATERIAL EVIDENCE AFTER RETIREMENT.
    In a prosecution for murder, testimony of witnesses held to show that, after the jury had! retired to deliberate upon the case, a juror made statements to them of facts stated to be of his own knowledge, not irrelevant or immaterial, and such as were testimony within the meaning of Vernon’s Ann. Code Or. Proe. 1916, art. 837, requiring new trial.
    Appeal from District Court, Franklin County; J. A. "Ward, Judge.
    Ledger Gilbert was convicted of murder, and appeals.
    Reversed and remanded.
    Beavers & Wilkinson, of Winnsboro, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appeal is from a conviction for murder with a penalty of five years’ confinement in the penitentiary.

The deceased, Arthur Greenlee, was struck on,the head with a stick’ of timber one blow which resulted in his death. The assault occurred immediately after services at the church had ended and while deceased was starting away on foot. There was evidence of a difficulty between appellant and deceased about two weeks prior to the homicide in which the deceased used insulting language toward the appellant. Subsequently, according to state’s witness, appellant expressed his intention to kill the deceased and later his intention to- whip him. A witness who was acquainted with neither of the parties testified that he saw the blow struck with a stick; that the assailant passed him and hit the deceased and ran. A witness by the name of Dickens was with the deceased at the time he was killed and in his testimony on the trial identified the appellant as the assailant. The appellant denied the assault and relied on proof of alibi.

A witness who was in the church with the appellant a short time before the homicide testified that the deceased was also in the house just in front of the witness and appellant and in full view, and that the appellant while looking at deceased said to the witness, “He is here, isn’t he?’’ The witness was present at the previous difficulty and had conversed with appellant upon the subject subsequently, and said that shortly before the remark complained of was made appellant had said a word or two about the deceased, though the witness disclaimed recollecting the purport of the remarks. We perceive no error in the admission of the evidence. It circumstantially appeared that the reference was to the deceased and went to show, at least, that appellant took note of the presence of the deceased.

Some five minutes after the blow was struck, and after the assailant had run away, the eyewitness Dickens was asked if he knew who struck the blow, and he replied, “Yes.” Granting this to have been hearsay, we think its admission was not reversible error. The same evidence came without objection from other sources than that complained of in the bill. Moreover, the appellant in the development of his ease made it pertinent as bearing upon the credibility of the witness Dickens, in that, by cross-examination and impeachment the appellant undertook to show that the witness Dickens had claimed that the assailant of the deceased was Loyal Gilbert, the brother of the appellant, and in supporting the witness the state proved by several witnesses that Dickens had claimed soon after the homicide that he knew the assailant to be the appellant. A reversal is not authorized for the admission of competent, relevant evidence though it comes out of its order. Moore v. State, 7 Tex. App. 14; Cox v. State, 8 Tex. App. 297, 34 Am. Rep. 746; Hartsfield v. State, 29 S. W. 777; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967.

The state introduced evidence that, shortly after the homicide, a person ran across a certain field, and one witness who testified to this fact claimed that he had gone into the field on the night of the homicide for the purpose of responding to a call of nature, and that while there he heard a party running. Subsequently, evidence was introduced showing that there were tracks of a person running across the field, and the witness in testifying to the tracks also described tracks corresponding to those which would have been made by the witness last mentioned. The admissibility of the latter fact is challenged on the ground that its receipt is obnoxious to the rule which rejects testimony the sole purpose of which is to holster the testimony of an unimpeached witness; appellant referring to Taylor v. State, 79 Tex. Cr. R. 274, 184 S. W. 224, and Holmes v. State, 52 Tex. Cr. R. 353, 106 S. W. 1160. The rule mentioned does not exclude cumulative evidence of a relevant fact, and in cases of this character, where the identity

of the slayer'is the main controverted issue, it is the privilege of the state to put in evidence all surrounding facts and circumstances which may bear upon the subject of inquiry. Proof of footprints found at or near the scene of the homicide, as well as the presence of all persons, were admissible, and the fact that some or all of the footprints or other objects found could be accounted for by testimony of persons claiming to have been on the ground before or after the homicide would not be valid reasons for excluding evidénce that they were found. Ruling Case Law, vol. 13, p. 106; Wharton’s Grim. Ev. vol. 2, p. 1681; Michie on Homicide, p. 829; Haley v. State, 209 S. W. 676.

The witness Alexander heard the lick and went immediately to the deceased, and while there picked up a stick which he hid in a fence corner, and subsequently the same night he _ went with the witness Salford and they got the stick. He said:

“I do not know who picked it up; I think Mr. Salford. I was with him’ and saw him get it. Mr. Salford and I got it that same night.”

Salford testified that he went with Alexander and got the stick from the corner of the fence and delivered it to Alvin Banks; that he subsequently saw it in the hands of Tibbs, a deputy sheriff. He said that the stick exhibited to him on the trial was, in his best judgment, the same. Tibbs testified he got the stick whiéh.was exhibited to the' jury, on the night of the homicide, from Alvin Banks. He had kept it and brought it to court. The witness Alexander was not able to identify the stick introduced in evidence as the one that he picked up. The indictment described the stick used with unnecessary particularity as 3 feet 8 inches long, 3 inches wide, and 1 inch thick. The record fails to disclose that any measurements of the stick introduced in evidence were given at the trial. Alexander made an estimate of it stating that he took it to be 3 or 3y2 feet long, 2% inches wide and an inch thick. The stick exhibited to the jury was also identified by the witness Stocks, who appears to have been with Alexander at the time it was picked up. We think there was no error in admitting the stick in evidence. Its identity and its dimensions as meeting those set out in the indictment were questions for the jury. Underhill on Evidence, § 314; Wharton’s Grim. Ev. p. 276; Gipe v. State, 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238.

Appellant contends that the court was in error in rejecting his offer to prove 'the reputation of the deceased for violence. We are aware of no issue upon which this testimony would have been relevant. Irwin v. State,. 43 Tex. 241; Branch’s An. P. O. p. 1177, and cases cited. Appellant offered proof that some 30 days prior to the homicide the deceased, at a point some six miles from the homicide, cursed a man by the name of Wooten and told him “he would cut his head off and chunk his body with it.” This, as well as the .reputation of the deceased mentioned, we understand the appellant deemed relevant as tending to show that another not acting with the accused had opportunity and motive to commit the of.fense. In a proper case testimony showing such opportunity and motive of persons in such proximity to the homicide as to render the facts of any weight in determining the identity of the slayer or in excluding the accused should be received. Taylor v. State, 81 Tex. Cr. R. 359, 195 S. W. 1149; Wallace v. State, 46 Tex. Cr. R. 349, 81 S. W. 966; McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S. W. 879; Ogden v. State, 58 S. W. 1018. There was no suggestion in the evidence that Wooten was present.

The case was not one in which the state relied upon circumstantial evidence alone. Evidence of the witness Dickens was sufficient to take the case out of this rule, in that he was positive in his identification of the appellant as the assailant of the deceased. He said in his direct examination:

“I was with him when he was struck. Ledger Gilbert struck him. Ledger Gilbert came up from behind us. When the lick was struck I looked around.”

On cross-examination, he said:

“It is not true that I did not see the party who struck him. I did see him. The first thing that attracted my attention was the lick. I then looked around and saw the party who struck the lick. He was turning the moment I got a glimpse of him. He ran off. I saw him until ho got up to the corner of-‘the church. The stick fell down and struck my hand. I swear it was Ledger Gilbert. I swear it because I saw him and looked into his face. I saw his features. I could see him as he ,was turning, and I know it was him. There was light there. I think there was light shining on his head.”

We think there was no error in excluding the testimony offered.

The court was not in error in refusing to permit the appellant to prove that on a different occasion, and some time subsequent to that on which 'the appellant had uttered a threat against the deceased, he said to a third party that deceased’s cursing him hurt thg deceased worse than appellant. This was properly excluded as hearsay and self-serving. Branch’s An. P. O. p. 58. The appellant having introduced evidence impeaching the witness Dickens by proof of statements contradictory of his evidence upon the trial, the state was within its rights in proving the prior consistent statements which are complained of. Branch’s An. Texas P. C.' p. 110.

The offer to prove that the witness Campbell had told the witness Tibbs that Loyal Gilbert, brother of appellant, who was under arrest, was not present at the time of the homicide, was properly rejected under the rule against hearsay and against impeachment of a witness upon a collateral issue. Branch’s An. Texas P. O. p. 108.

We think there was no error in excluding evidence of the conversation between appellant and his brother at the church, where the homicide took place, and a short time prior thereto. Especially is this true, as the substance of the conversation, showing that the brother stated he expected to be absent and requested appellant to do certain work for him at home, was developed.

The assignments of misconduct of the jury and the misconduct of the court by causing the arrest of a witness during the trial raised questions of fact upon which the court heard evidence which we have carefully examined and deem it unnecessary to detail. Suffice it to say that in our opinion it supports the conclusion reached by the trial court that there was no new evidence given the jury in its retirement, and that the arrest of the witness was not brought to their attention in a manner or time which was harmful to the appellant.

Discovering no errors which authorize us to reverse the judgment, its affirmance is ordered.

• On Motion for Rehearing.

LATTIMORE, J. Appellant has presented his motion for rehearing, contending principally that there is a variance between the stick described in the indictment as the instrument with which the alleged homicide was committed, and the stick exhibited before the jury and described by the witnesses, and also of misconduct of the jury.

The indictment describes said stick as “three feet and eight .inches loág, three inches wide, and one inch thick.” In claiming a variance, appellant relies upon the well-known rule of law, to the effect that there must be a correspondence between the allegation and the proof, and that, where a thing necessary to be described in an indictment is described with unnecessary particularity therein, the proof on the trial must correspond in order to be sufficient. Robinson v. State, 60 Tex. Or. R. 592, 132 S. W. 944.

We call attention, in this connection, to the rule, which is of equal force and application, that in such case the proof is sufficient if it show that the weapon charged in the indictment, and the one shown by the proof to have been used, is such that the nature and result of its use is the same, or substantially correspond. So it is held that an allegation of homicide with a gun is met by proof of the same with a pistol. Douglass v. State. 26 Tex. App. 109, 9 S. W. 489, 8 Am. St. Rep. 459. Also, that an allegation of assault with a Winchester rifle is met by proof of the commission of the same with a Colt’s rifle. Brown v. State, 43 Tex. Cr. R. 293, 65 S. W. 529. Also, that an allegation of death from poison mixed with water is met by proof of ’ death by poison mixed with coffee. Johnson v. State, 29 Tex. App. 150, 15 S. W. 647.

In the instant case the stick exhibited to the jury and described by the witnesses is variously estimated at from 2% to 4% feet long, an inch thick, and from 2y2 to 3 inches wide.

We think the trial court correctly told the the jury that,- if they believed the proof showed that the stick used was substantially the same as described in the indictment, this was sufficient. Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538; Chisom v. State, 77 Tex. Cr. R. 397,179 S. W. 103; section 1589, Branch's Ann. Penal Code. Nor do we think there was error in permitting the stick to be shown to the jury, as the evidence connecting the same with the homicide was sufficient to take the question of its identity to the jury.

The remaining ground of appellant’s motion is that we erred in holding that the facts adduced before the trial court in support of the motion for a new trial did not show that the jury received other evidence after its retirement. We have reviewed the statement of facts bearing on this contention, and have come to the conclusion, that we were in error in deciding this matter.

It is provided by article 837, Vernon’s Ann. Code Cr. Proc., that in a felony case a new trial shall be granted “where the jury, after having retired to deliberate upon a case, have received other testimony”; and it is held that if such testimony be so received, and it appear that same is of such nature as>that injury may have resulted, and that fact is shown on motion for new trial, this court will not speculate as to its effect upon the jury, but will reverse the case. McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 945. L. R. A. 1917E, 930.

The question for us is this: “Did the jury, after its retirement, receive other testimony than that given on the witness stand?” If this question be answered affirmatively, we must reverse the case. The trial court heard the testimony of the jurors pro and con on this issue, and same is set out in the record before us. The contested question was as to whether Juror Lindsay had made statements in the jury room that certain pertinent facts stated and discussed by him and the other jurors were true or untrue, because known personally to said juror.

In support of said motion, Juror Snead testified:

“I was on the jury that convicted the boy. Before we arrived at a conviction in there, there was some right smart discussion how the ground was and where the wagon was and Where the light was. I believe Mr. Lindsay made the remark that he knew the location of the church and things down there. After he made that remark he explained in this way how it was located; If the wagon was located where the testimony showed, he knew from His knowledge where the wagon was, just like I knew it. He never changed me a bit on that. He said he knew where the church was at and the ground. After telling us that, I believe he used the table. He said then, if the wagon was where they testified it was, he knew what direction it was from the church. * * * He said, if it was at a certain place, he had been there and knew what direction it was from the church and where it was situated. I think he said something about the windows in the church, and he said he knew where they were. He did not say, if the wagon was where it was testified, the light would not shine there. I think he said where the light would shine out. He said it would sliine there at the back of the wagon. He did not say anything about whore Mrs. Gilbert said it would shine. He said the light coming out of the window would shine out behind the wagon. I don’t think it would not shine out on the wagon. He did not say it would not shine there, I don’t think. I think he told us he knew himself where the windows were in the house; I know he said that. He did not say that the light would not shine out and strike the wagon, nor that it would, but from the way he located the windows it would not. He showed us where the windows were located, and from where he located the windows in the house, from what he knew of the house himself, the light would shine behind the wagon, and would not shine on the wagon, I think.”

This witness testified that what was said by Lindsay did not influence him at all, and, further, that he did not know whether Lindsay was talking from his individual memory or from the testimony, but thought' it was from the testimony.

Juror Waters testified:

“Mr. Lindsay explained about where the windows were in the house. I know he did. I think he had been there, and knew where the windows and doors were in the house. I think he showed us, if the wagon-was standing at the place they testified to, how it would be as to the windows. * * * It was after he explained about the windows that I said I was satisfied. * * * He did explain where the windows were, and explained that; and it was after that that I agreed to a verdict.”

Cross-examination: “I understood, from what Mr. Lindsay said about the windows and the way the light would shine, that he was arguing it from what the witnesses said. I did not receive any information and was not governed by anything said by Mr. Lindsay in the case.

Examination by the court: “I understood that Mr. Lindsay’s explanations about the windows was based on his knowledge gained from the testimony in the court, and his being acquainted with the place too. His being acquainted with the place would make him more readily understand it than anybody else.”

Redirect examination: “It seems to me like Mr. Lindsay, while talking about the windows, said something about the light would not shine out there where the wagon was; that it would not shine out there because he knew where the windows were himself.”

Juror Cargile testified:

“I was on the jury that convicted Ledger Gilbert. I heard Mr. Lindsay state in the jury room that he was acquainted with all of the parties; he said he knew them all. I did not hear him state what he thought of any of the parties that testified, as to them being honest or truthful or anything that way; if he mentioned that, I did not hear him. I did. not hear him say how long he had known them; it was my understanding that he was acquainted with them all. I heard him say he was acquainted with the church and grounds and the location of it. After he said that, I think he proceeded to show us how it was located. He showed us where the wagon was standing in relation to the church. We were all discussing that, and we all wanted to know where the location was, and I think he explained it to us to our satisfaction, if there was any dissatisfaction. I think we all thought we understood exactly where it was, and we wanted to know for sure. He did not say that the plat that was offered in evidence was backwards, and that he knew how it was himself; if he did, I did not hear it. He did say he was acquainted with the location. He took the table and showed us on the table how the ground was and where the wagon was standing. I suppose he knew that himself. After he explained it, the way he knew it was situated, it was satisfactory to us.”

This witness also stated on cross-examination, in response to questions by the court, that he was not influenced by anything except the testimony of the witnesses; that he understood Lindsay was explaining matters from testimony and not from his personal knowledge.

Juror Hightower testified as follows:

“While the jury were in the room deliberating on their verdict, Mr. Lindsay possibly did show the jury how the ground lay down there and the field and which direction it was, plotting it off on the table and using the table for the north part of the field, while I did not understand that he was showing us from what he knew about the field. I asked the question; I was trying to locate the wagon that Mrs. Sallie Gilbert was in more to my satisfaction as regards the light that Mr. Inman was carrying, and Mr. Lindsay explained it to me; but I don’t know from what point he was explaining it. I understood it to be from what he understood it to be the witnesses’ testimony. I remember Mr. Lindsay saying he knew the lay of the land down there, but as to some of them speaking up and saying they did not understand how the boy got away, and which way he went, and Mr. Lindsay going on to explain the route he went and stating he knew the location himself, I don’t remember that. He did say he understood the lay of the land and was acquainted with the place. After he said that, I really don’t know, whether he proceeded to show me how it was located or not. I know .after he. said that I told him what I was trying to find out was the location of the wagon, and he explained that to me. He explained to me where the light was, and he said something about the distance from the church; but I don’t know what he said. He might have stated how far it was from the church to the cemetery and out to the trees where Hugh Inman was. We were mostly all talking at once, and lots could have been said that I did not hear. He did say that he knew the ground and was acquainted with the location and knew where the wagons stood from what they testified, and he proceeded to show where the wagon was. * * * I had the one idea in my mind to locate the one wagon if I could. He showed me where the light and wagon was.”

This juror further stated, on cross-examination that he was not influenced by what was said by Mr. Lindsay, and that he understood that the discussion of the location of the lights was from the evidence introduced upon the witness stand.

The Juror Lindsay, whose statements in the jury room were objected to, also testified in opposition to the motion, He said as follows:

“I did not know, of course, anything about where the wagons stood. I knew that from the witness stand; that is all I could go by. If it stood at the place where some of them testified, I could not help but know from my own knowledge where it was at. Some'one asked me the question where Mr. Inman was with the light, how came the question about the windows to spring? They could not locate just where he was, and of course his testimony was there to go by, and I explained from his testimony where he swore he was. From his testimony, if he swore he was at a certain place, I knew where that place was, and I explained it to them according to the testimony. Knowing the ground, I knew about where he was standing. I explained to them where he was from Mr. Inman’s testimony and from what I knew of the ground. Mr. Hightower asked the question, said he could not locate it. I told him where Mr. Inman swore he was. I could not tell you whether I said if he was at that place I knew where he was, but I was governed by the evidence. The location of the windows was taken up, and there was a plat there, and I showed them the best I could according to that plat, and explained it, and there was something mentioned about the table, and I told them how the house stood. Of course, I could not help but know that. I was acquainted with the location of the windows.”

We have examined the testimony of these witnesses carefully, and our conclusion is that, after the jury had retired, the Juror Lindsay made statements to them of facts stated to be known of his own knowledge. These facts stated as within the knowledge of the juror were not of an irrelevant or immaterial nature or character but were “testimony,” as the word is used in article 837, Vernon’s G. G. P., supra.- We do not believe it incumbent upon us to speculate as to the effect of such testimony upon the other jurors, nor that a new trial should be de-Hied because they may bave stated that the same did not have any effect upon them. If it be shown in any case, as we think it has been shown in this case, that the jury received testimony other than from the witness stand, our only course is to reverse the case.

The motion for rehearing is granted, and the judgment reversed and remanded for another trial ‘ 
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