
    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1910.
    Rehearing Denied Dec. 7, 1910.)
    1. Homicide (§ 340) — Appeal — Haemless- ' Ebroe — Refusal oe Instruction.
    Where the only evidence of alibi was an alleged statement of accused that he told another that he was down the road about a' mile and a half or two miles from the place of the killing, and near another’s house, on the night of the killing, and the other testimony showed’ conclusively that accused was not át such house, but was at the place of the killing when it occurred, and the court gave instructions applying the law of circumstantial evidence to every possible combination of facts, any error in not charging on alibi was not reversible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-718; Dec. Dig. § 340.]
    2. Criminal Daw (§ 829) — Instruction—REQUEST — INSTRUCTIONS ALREADY GIVEN.
    Requested charges on the law of circumstantial evidence were properly refused in a homicide case where the law thereon was charged in every possible form with reference to the circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    3. Criminal Law (§§ 763, 764) — Instructions — Weight op Evidence.
    Accused requested charges that when the evidence in a murder case “is wholly circumstantial, as in the case here,” the absence of all evidence of a motive affords of itself, a strong presumption of innocence, and that the failure of tbe evidence to show any other criminal agent than accused is not a circumstance that may be considered by the jury in determining guilt. Held properly refused as on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    4. Criminal Law (§ 452) — Evidence—Opinion Evidence.
    Witnesses, who testified that they had a thorough knowledge of the kind of hair they called “negro hair,” could testify that the hair found on the ax with which decedent, a negro, was supposed to have been killed was negro hair.
    [Ed. Note. — For other cases, se'e Criminal Law, Cent. Dig. §§ 1053-1055; Dec. Dig. § 452.]
    5. Homicide (§ 173) — Evidence.
    Another witness testified that, as soon as he found the ax with which the killing was claimed to have been done, he took it in the condition in which he found it to a crowd, where K. was, and the latter testified that the ax was bloody.and had negro hair, blood and brains on it, which was substantially the testimony of the other witness. Held, that the ax was sufficiently identified to warrant the admission of K.’s evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    6. Criminal Law (§§ 419, 420) — Evidence-Hearsay.
    K.’s testimony was not objectionable as hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    7. Criminal Law (§ 451) — Evidence—Opinion Evidence — Shorthand Statement op Facts.
    Testimony that an attempt had been made to wipe the blood from the ax with which the killing was done was not opinion testimony, but merely a shorthand statement of facts, and was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1040-1042; Dec. Dig. § 451.]
    8. Jury (§ 105) — Qualification op Jurors —Prejudice.
    Jurors who testified on their voir dire examination in the prosecution of one negro for killing- another that they could give accused as fair and impartial a trial for killing another negro as they could a white man for killing a white man under the same circumstances, but could not give a negro who had killed a white man as fair a trial as they could a white man, were not objectionable.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 480-484; Dec. Dig. § 105.]
    9. 'Criminal Law (§ 1111) — Exceptions, Bill op — Acceptance as Qualified — Effect.
    Where the bill of exceptions as qualified and approved, and accepted by appellant, showed that no objection was taken to a juror on his voir dire, and that no showing was made which would disqualify him, a conviction will not be reversed because of recitals in the bill before it was qualified, which would disqualify such juror.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894r-2896; Dec. Dig. § 1111.]
    10. Criminal Law (§ 656) — Trial—Conduct — Comment by Judge — Comment on Evidence.
    A remark by the trial judge upon objection to testimony in a homicide case that hair found on the fatal ax was negro hair, “1 do not know whether it takes an expert to tell about hair,” was not a comment on the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]
    11. Criminal Law (§ 451) — Evidence—Opinion Evidence — Shorthand Statement op Facts.
    Testimony that witness did not know how long the tracks around the house in which the killing occurred were in inches, that it was a pretty good sized shoe and was longer than the ordinary, larger than a No. 8 shoe, wgs not objectionable as being witness’ opinion; being more in the nature of a shorthand rendition of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1040-10-42; Dec. Dig. § 451.]
    12. Jury (§ 82) — Venire.
    Where the veniremen not served with summons were either out of the county or not found, and, of the 45 served, only 4 of those not appearing were unexcused and unaccounted for, leaving 23 present, and no attachments were asked for the absent jurors, a motion to quash the venire was properly overruled.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 307, 331 ; Dec. Dig. § 82.]
    13. Criminal Law (§ 404) — Prosecution-Admission of Evidence.
    
      Where the evidence in a prosecution for a homicide committed with an ax was wholly circumstantial, overalls worn by -accused at the time of the homicide which had blood spots on them, and marks as if some one had tried to rub the blood off, were admissible in evidence to connect accused with the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 891-893; Dec. Dig. § 404.]
    14. Jury (§ 72) — Summoning — Summoning by Sheriff.
    After the special venire in a homicide case was exhausted, the jury was properly completed from jurors summoned by the sheriff.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 333-348; Dec. Dig. § 72.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Eugene Williams was convicted of murder, and he appeals.
    Affirmed.
    J. Holmes Anderson and Nat Llewellyn, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep-r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted for the murder of George Willie McGill, alias Ab McGill, and awarded a life sentence in the penitentiary.

The state’s case, in brief, is that appellant .and bis wife bad been hired by W. G. Kirkpatrick as cotton pickers. They occupied and slept in a room of a house occupied by another negro named Burton. Appellant was •a poor man, and had nothing in the way of finances when Kirkpatrick employed him. Kirkpatrick had to supply him with bedding and necessary matters -before appellant would agree to work for him. Nearly all of the money arising from the cotton picked by appellant and his wife was used in paying for the bedding and such things as appellant1 needed. The deceased, McGill, was also in the employ of Kirkpatrick, and had been for ■some time. He occupied a different house from that occupied by appellant and his wife, and Burton. McGill’s death was brought about by some one striking him on the head with an axe and inflicting a wound upon his neck with some sharp instrument. The ease is one of circumstantial evidence.

1. The first bill of exceptions suggests error on the part of the court in failing to submit the issue of alibi. This proposition is based upon an alleged statement of the defendant that he told the witness Burton that he was off down the road about a mile and a half or two miles from said place near a house of a man named Richardson on the road to Chilton. An examination of the record, we think, would barely suggest the issue of alibi, even on this statement as contained in ,the bill. The court not only charged fully in regard to the law of circumstantial evidence, but gave several requested instructions in almost every edneeivable form, applying the law of circumstantial evidence to particular facts and combination of facts. Appellant presented this question in many ways. The testimony is so cogently overwhelming, in our judgment, that appellant was not at Richardson’s, but was immediately at the place where the homicide occurred, that it was unnecessary, in view of the charges given, for the court to have charged on alibi, and that there was no error in failing to do so. It may be stated, in this connection, that appellant’s statement as given does not show at the time of the killing that he was at Richardson’s. The statement is general that he was there that night. There was no charge requested by appellant. The testimony is so indefinite in regard to his absence at the time of the homicide that the error, if any was committed by the court in this respect, is not of sufficient importance to require us to reverse the judgment for that reason.

2. The court refused two special requested instructions with reference to the law of circumstantial evidence. This phase of the law was not only given by the court, but several special requested instructions by appellant were given. These submit that issue in every conceivable form, it occurs to us, that could possibly be applicable to the case; and besides, the refused charges asked were on the weight of evidence. The first one, for instance, is as follows: “The court further instructs the jury that when upon a charge of murder the evidence is wholly circumstantial, as in the case here, the absence of all evidence of an inducing cause or motive to commit the offense charged affords of itself a strong presumption of innocence.” The second -charge requested, which was refused, is as follows: “The court instructs the jury that if, upon the whole evidence in the case, there is any reasonable hypothesis consistent with the innocence of the accused, they must find him not guilty. The court instructs the jury that the failure of the evidence to disclose any other criminal agent than the accused is not a circumstance which may be considered by the jury in determining whether or not he was guilty of the crime wherewith he is charged,” etc. The court had given, as before stated, charges on circumstantial evidence favorable to the -defendant, so much so that some of them might be considered as being on the weight of evidence. The quoted charges above, it occurs to us, would be subject to the criticism that it was a charge upon the weight of evidence. If not on the weight'of the evidence, inasmuch as the court had given several instructions requested by appellant and had himself charged fully upon that phase of the law, there was no error in refusing these charges.

3. There are several bills of exception reserved to the ruling of the court permitting evidence to the effect that the hair found on the axe, which was supposed to have been used in the homicide, was negro hqir. Without going into these bills of exception and collating the testimony upon this issue, we are of opinion there was no error in this. The witnesses swear positively that it was negro hair. They knew negro hair and knew that it was negro hair. They show a thorough familiarity with such hair as they called “negro hair” such as was found upon the axe, and it was uncontroverted that this character of hair, was on the axe. This testimony was clearly admissible.

4. There are bills of exception reserved to the admission of the testimony in regard to the appearance of the axe as to blood stains upon it when it was found. By way of illustration, it is sufficient, perhaps, to call attention to the testimony of only one witness. This witness was Kirkp'atrick. He states the morning after the killing he saw an axe; that there wére a large crowd present who were examining it. Blackburn found it under the negro room; it was bloody for about six or seven inches up the handle, and it had negro hair, blood and brains on it. “I saw the axe. It was bloody for about six or seven inches up the handle, and it had negro hair, blood and brains on it. It was negro hair on that axe, and brains. There was dirt on the axe. It looked like he had tried to get the blood oft.” Several objections were urged to this testimony. The court qualifies the bill by stating: “The witness testified that Blackburn found the axe. Blackburn testified that he found the axe, and there was no controversy on that point, and the witness Blackburn testified that he did not change the axe in any way, hut as soon as he found it he took it to where the crowd was (where Kirkpatrick placed himself) in the same condition as when he found it and described the axe when he found it just as Kirkpatrick did. The witness stated that the hair on the axe was negro hair and was kinky hair.” The objection to this was that witness was not present when the axe was found, and it was hearsay and there-was no-evidence to show that the axe had not been handled by other people, and its condition changed after having been found, and that the statement of the witness that there was brains on the axe was a conclusion, he not having been qualified as an expert, and that his statement that it was negro hair was an expression of his opinion without having qualified as an expert. These are but grounds of exception, and are not verified in any way by the court as being true, and are not shown in the bill to be facts, nor are they stated as facts, "but simply" as grounds of objection. None of these objections are well taken and as shown in bill of exceptions as qualified by the judge, the witness could testify to the matters stated, and in looking at the evidence we find that the axe was fully identified as the axe found by Blackburn and as stated by the judge. The witness could state, under the circumstances detailed, that the hair on the axe was negro hair. He could also state the condition of the axe and that there was blood and brains on it.

5. There is also evidence introduced showing that an attempt had been made to wipe the blood from the axe. This is here stated generally as the substance of statements of the witnesses, but there was quite a lot of testimony introduced on this line. This, we think, was clearly admissible. The witnesses saw the axe, and it indicated that it had been wiped with a view of getting the blood from it. It did not take an expert to testify in regard to this matter. It was the appearance of the axe, and it is, under our authorities, not to be considered as expert testimony, but rather as a shorthand rendering of the facts. It is just one of those things that is almost impossible to describe by giving the facts other than as was stated. These witnesses testified in substance that it looked like the axe had been wiped on something after it had been used with a view of wiping the blood from it. This testimony was admissible.

6. Bill of . exceptions No. 6 recites that when the jurors Moore and Schmidecamp and Chas. Hinkle were on the stand being examined on their voir dire, each stated: they were prejudiced against a negro and could not give him the same fair and impartial trial they could a white man under the same facts and circumstances. On this statement of the jurors they were by the defendant' challenged for cause, and on further examination by the county attorney they stated while they were prejudiced against ne-groes, tha,t in their opinion when there was a negro being tried for the murder of another negro they believed they could give him a fair and impartial trial. On these statements of the jurors the appellant challenged each of them for cause, but the challenges were overruled, -and appellant excepted on the ground that the jurors were prejudiced against negroes, defendant being a negro. And that afterwards, when defendant had exercised his 15 challenges, a juror by the name of John Peters, who was virulent in his hatred of negroes, and as counsel knew, would be a bad juror on account of his prejudice, was forced upon defendant for want of challenges, and that afterwards when the case was submitted to the jury this juror did contend for a conviction of murder in the first degree with the death penalty, he being the only juror seriously contending for this punishment. This bill is approved with the qualification: “That the record only shows that .0. O. Moore and Ben Sehmide-camp were so challenged and that those two jurors said they could not give the negro as fair a trial as if he, a negro, had killed a white man, but that they could give the defendant, a negro, as fair and impartial trial for killing another negro as they could a white man for killing a white man under the same circumstances. There was no protest by counsel at taking John Peters as a juror when his name was reached, and no motion made to stand him aside for any reason and no challenge for -cause was made as to said Peters, who qualified on voir dire. No testimony adduced that he was prejudiced against negroes nor against defendant, and he testified that he was not. -No showing was made on motion for new trial that the juror had acted improperly in considering the case, and no evidence was adduced as to how he stood on the jury, whether for acquittal, conviction, life imprisonment, or death penalty. And there was no showing that defendant had been injured in any way by said juror.” As this bill is approved, it was accepted by appellant. It is not shown that appellant had an objectionable juror forced upon him. There was no objection urged to Peters. The court qualifying the bill excludes the idea that appellant sought to get rid of him. We would not be justified in reversing on recitations of this bill of exceptions.

7.Another bill of exceptions recites that, while Martin was on the stand testifying, the state offered the following facts: That witness examined the axe and found on it negro hair. Objection was urged that this was stating the opinion of the witness, and in this the court remarked: “I do not know whether it takes an expert to tell about negro hair, I think that any man would know negro hair.” Objection was urged, first, that this was an opinion of the witness Martin; and, second, that the court believed anybody could tell the difference between negro hair and any other substance or material, and showed them that the court believed that there was no probability of the witness being mistaken as to the substance on said axe. And again, that the court should rule on the evidence and not comment thereon. The court qualifies this bill toy copying from the stenographer’s report as follows: “State’s Counsel: Can you tell the difference between negro hair and white folks’ hair? Witness: Yes, sir. State’s Counsel: I will ask you what kind of hair was on the pole of the axe? Defendant’s Counsel: We make the objection that it is an opinion. The Court: I do not know whether it takes an expert to tell about hair. Defendant’s Counsel: We make the objection that he has not qualified as an expert on negro hair. State’s Counsel: Can you tell the difference in straight hair and kinky hair? Witness: Yes, sir; it was kinky.” The court further qualifies the bill by stating that: “The record fails to disclose any exception whatever by the defendant as to the remarks of the court and the above ■is a stenographic memorandum prepared for the purpose of reserving exceptions.” The court further states: “The witness further testified as to his knowledge of negro hair as follows: ‘There was blood on the pole of the axe, and negro hair on it. There was hair and blood on the axe. I can tell the difference between negro and white folks’ hair. That was kinky hair on the axe. Ab McGill had kinky hair.’ ”, As this matter was presented we are of opinion there was no error shown. The statement of the court was not a comment on the weight of the evidence. It did not convey to the jury any idea of what the court thought as to the hair. The court was correct in admitting the testimony, and we are of opinion that his statement ought not to be considered a comment on the evidence. It was simply an expression of doubt as to whether' it would take an expert to tell the different kind of hair or the hair in question was negro hair.

8.Another bill of exceptions recites that Poole, in testifying, identified $5 in silver, $4, and two half dollars as the money that was taken from the defendant the morning after the alleged killing of Ab McGill. This was objected to on the ground that it served no useful purpose, and that there was no identification of the .money as the money that was owned by the deceased. These are but grounds of objection, and not statement of the fact that the money was not owned by McGill. Going to the record, we find this money was sufficiently identified and connected up to show that it had belonged to deceased.

9. Another bill of exceptions objects to the testimony of Kirkpatrick that he found tracks on the ground running from the back of the house and leading across the lane larger than a No. 8 shoe, and were about the size of tracks made by defendant. The objection to this testimony was that it was but an opinion of the witness. The court qualifies this bill as follows (copying from the stenographic report of the facts): “I do not know how long those tracks were in inches. That was a pretty good sized shoe. It was longer than the ordinary. It was larger than a No. 8 shoe. The track was rather a large track.” This testimony was properly admitted. Testimony of this sort nearly always has more or less tinge of opinion, but our authorities treat it more as a shorthand rendering of the facts than as expert testimony.

10. Another bill recites that appellant, before announcing ready for trial, moved the court, to set aside the venire therein drawn, first, because a venire of 60 men had been ordered, and but 45 served; second, because there was not sufficient reason given why the 15 jurors not served were not served; third, because out of the 45 served, but 23 were present; and, fourth, because it was clearly impossible to get a jury out of the number of jurors present. This bill was approved with this qualification: “No written motion to quash the venire was made before an announcement of ready for trial.During the progress of the case a written motion to postpone the case until a venire could be drawn was made. This motion was made after three jurors had been selected. A verbal motion was made prior to the announcement of ready for trial, and upon a hearing of the same the court. found the facts to be as follows: A venire of 60 men was drawn. Of this number 45 were reported as summoned by the sheriff. Of the 15 not summoned, the return of the officer showed that three were out of the county and could not be served. Eleven were reported not found, one of whom was a road overseer; and one reported not served because over age, and for that reason not subject to jury service, thus accounting for the 15 not served. Of the 45 summoned, 23 appeared and answered to their names. Of the absent 22 the' following was found to be a fact.” It is unnecessary to repeat this qualification as the name of each juror is set down and reason given for his absence. Some of them were excused by counsel; some were sick. One was a minister of the gospel. One or more had moved out of the county. Several of them had sickness in their family. One was an editor of a newspaper, and another a minister of the gospel. The court then states: “With the excuses rendered above and the excuses made by counsel four names were absent, unexeused or unaccounted for. Counsel for defendant made no motion for attachments to bring in the absent veniremen.” . As this bill presents the matter we are of opinion there is no error shown.

11. Objection was made to the introduction in evidence of the overalls worn by the defendant at the time of the homicide. The overalls were identified and shown to have had bloodstains and spots upon them, and at one place it appeared as if some one had tried to rub the blood off, leaving a smear. Under the circumstances of this case we think the overalls were introducible in evidence. Whenever bloody clothing or instruments of crime or matters of that sort tend to connect the party with the criminal transaction, they are introducible. This question has been discussed at various times by this court in the opinions. Under this record, this testimony, was admissible, it being a ease of circumstantial evidence, and this was one of the means of connecting appellant with the homicide. There are Several bills of exception reserved along this line.

12. Another bill of exceptions recites that after the special venire had been exhausted only three jurors had been selected, whereupon defendant made the following motion: “Now comes defendant, moves the court to postpone this cause for the following reasons: A special venire of sixty men were ordered, and but twenty-three appeared, and out of that number but three were selected. 'The remainder of the jury will have to be selected from jurors summoned by the sheriff, and in effect denying the defendant his right to select his jury from a venire selected according to law.” This was overruled, and a bill of exceptions reserved. The ground of objection urged by appellant was that it appeared from the action and conduct of the sheriff that he was prejudiced against defendant, and a jury selected by him would not be as satisfactory to defendant nor as just as one selected according to law. The court qualifies this bill in the following language: “There was no testimony adduced on said motion whatever, and there was no showing made as to it appearing ‘from the actions and conduct of the sheriff that he was prejudiced against the defendant, and a jury selected by him would not be as satisfactory to defendant nor as just as one selected’ otherwise. And that there was no desire expressed by the defendant nor any intimation that the summoning -by the sheriff of jurors would be done unfairly and that there was absolutely no ground for any such charge either in the conduct or actions of the sheriff.” The court followed the legal way of having the jury summoned; that is, by the sheriff after the special venire had been exhausted, and, there being nothing to show there was any prejudice on the part of the sheriff, that part of the motion would fail. We are cited? to the case of Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044, in support of this motion. That case would support appellant’s contention, but in the case of Mays v. State, in the same volume, page 165, 96 S. W. 329, the rule, after a thorough investigation of' it on motion for rehearing, was changed; that is, it was held that the rule laid down in the original opinion in the Mays Case, which was in accordance with that in the Keith Case, was erroneous, and the Mays Case has since been followed. The Mays Case lays down the correct proposition, and' has been followed in Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774.

13.We have not reviewed all the bills of exceptions seriatim inasmuch as several of them presented the same character of testimony as introduced from different witnesses set out in bills already mentioned, but we-believe we have covered all the questions suggested for revision. We are of opinion that appellant has had a fair,trial, and that none of the rulings of the trial court were-of such character as require or authorize us to reverse the judgment. The testimony, we-think, is ample to sustain the conviction. It shows that McGill was. murdered by-somebody in his sleep, lying upon his bed, and that appellant has been fully connected with the crime, and was the only party,, perhaps, so far as this record is concerned, present at the killing, and that he killed deceased with an axe. He was subsequently found with the same or similar money, that deceased is shown to have had only a short-time prior to and on the same night of the homicide. The jury saw proper to give appellant lifetime imprisonment in the penitentiary, and not the death penalty.

The judgment is affirmed.  