
    PULLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Criminal Law (§ 784) — 'Trial—Instruction ON CIRCUMSTANTIAL EVIDENCE.
    It is only when the testimony relied on for a conviction is wholly circumstantial that the court is required to charge on circumstantial evidence; and, where there was positive testimony that defendant was the man who committed the burglary, the weight of which was somewhat weakened by cross-examination, no charge on circumstantial evidence was necessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ '1883-1888, 1922, 1960; Dec. Dig. § 784.]
    2. 'Criminal Law (§ 721) — Trial—Conduct or Prosecuting- Attorney — Reference to Defendant’s Failure to Testify.
    In a prosecution for burglary, where it appeared that a watchman had fired three times at the alleged burglar, and that defendant when arrested had been shot through the arm, and defendant did not explain how he received the wound, although he contended that it would have been impossible for the watchman to have shot him, the district attorney’s language, to the effect that if defendant was not wounded in the store the jury might like to know where he was wounded, was no more than an indirect reference to defendant’s failure to testify, and not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    3. Witnesses (§ 379) — Impeachment — Inconsistent Statements.
    The exclusion of statements as to what impeaching,witnesses had said to a state’s witness, in connection with inconsistent statements of the latter, offered to contradict the state’s witness, was not error, where there was no necessity of explaining the statements of the state’s witness.
    [Ed. Note. — For other cases, see Witnesses, .Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    4. Witnesses (§ 379) — Impeachment — Inconsistent Statements.
    What witnesses might have said to a state’s witness, not admissible as original evidence, would not tend to impeach him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    5. Criminal Law (§ 473) — Expert Testimony — Physical Condition.
    Where physicians were qualified and testified to an examination of a wound in defendant’s arm and described the wound and its condition, their testimony as to the length of time it had been inflicted when examined was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1060; Dee. Dig. § 473.]
    6. Criminal Law (§ 1168) — Harmless Error-Admission of Evidence — Relevancy.
    In a prosecution for burglary, the fact that a witness, who said he had seen defendant at a certain place and time on the night of the burglary, knew the time because he had been so informed by another person, was immaterial; and hence a refusal to exclude it was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 3144; Dec. Dig. § 1168.]
    7. Criminal Law (§ 1168) — Review—Harmless Error — Fact Otherwise Shown.
    Error, if any, in refusing to strike immaterial evidence as to the time when witness saw defendant, was not ground for reversal, where defendant himself proved that he was at that place at that time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 3144; Dec. Dig. § 1168.]
    
      8. Ckiminal Law (§ 1099) — Appeal—Record — Time por Filing Testimony.
    Evidence taken on the question whether the jury discussed defendant’s failure to testify before arriving at their verdict, not filed until after term time, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    9. Affidavits (§ 5) — 'Who May Take — Attorney in Case.
    Where the affidavits raising the issue whether the jury discussed defendant’s failure to testify before arriving at their verdict were sworn to before one of the attorneys in the ease, .they were properly stricken from the record.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.]
    10. Criminal Law (§ 956) — New Trial-Conduct of Jury — Sufficiency of Evidence.
    Evidence on the issue whether the jury, before agreeing upon their verdict, had referred to defendant’s failure to testify, contrary to the instructions of the court, held to show that a juror’s reference to such failure was made after the jury had agreed upon defendant’s guilt, though before the fixing of the time of punishment.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2373-2391; Dec. Dig. § 956. ]
    11. Criminal Law (§ 1174) — Review — Harmless Error — Conduct of Jury.
    Error, if any, in a juror’s reference to defendant’s failure to testify, made after agreement on defendant’s guilt, but before fixing the time of punishment, contrary to the court’s direction, held not reversible error in view of the fact that the jury assessed the lowest penalty authorized by law.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Lewis Pullen was convicted of burglary, and he appeals.
    Affirmed.
    Spearman & Peak, of Greenville, for appellant. -C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was prosecuted and convicted of burglary, and his punishment assessed at two years’ confinement in the state penitentiary.

As J. W. Cornett on the trial swears positively to the identity of the defendant as the man who entered the store, it was not necessary to give a charge on circumstantial evidence. It is true on cross-examination and by proof of statements made at other times' and places the appellant to some extent weakens the force of this identifying testimony, but this goes only to the weight to be given; it by the jury, and did not render a charge on circumstantial evidence necessary. It is only when the testimony relied on for a conviction is wholly circumstantial that the court is required to so charge. Tooney v. State, 8 Tex. App. 462; Buntain v. State, 15 Tex. App. 520; Hunnicutt v. State, 18 Tex. App. 522, 51 Am. Rep. 330; Hayes v. State, 30 Tex. App. 407, 17 S. W. 940; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955; and cases cited in section 203, Branch’s Texas Crim. Law.

Complaint is made of the remarks of the district attorney. It appears from the evidence that the watchman fired at the alleged burglar three times; that defendant when arrested had been shot through the arm. The defendant did not testify, nor was there any evidence offered explaining, how he received this wound, although appellant, during the trial, placed His arm in evidence, showing that the bullet entered the back of the arm and came out in front; the contention being that it would have been impossible for Cornett to have made this wound at the time he fired at the burglar, inasmuch as the bullet did not go in the body. Cornett had testified that when he first fired the arms of the man were hanging by his side. There might be force in this contention if only one shot had been fired, but as Cornett says the burglar turned and ran, when ho fired twice more, and there being no positive testimony which shot inflicted the wound, the contention is without much strength. However, this shows the contention of defendant, and the bill recites that the district attorney said: “If the defendant did not receive that wound in Orr Little’s store, as shown by the testimony of the state, wouldn’t you like to know where the defendant did receive said wound? If he received the wound at the hands of a highwayman, would you not like to have heard the man who inflicted the wound, or some witness-who saw the wound inflicted, testify in this case?” It is contended that is a reference to-defendant’s failure to testify. He had offered this wounded arm in evidence, but did. not say how or when he received the wound. We think under the circumstances the district attorney was justified in using the language quoted, and it cannot be said to-be more than an indirect reference to his failure to testify if that much can be said, and it is not every incidental reference to-such fact that will be cause for reversal, and especially is this true when it is only by a strained construction the language can be said to refer to defendant’s failure to testify. Wooten v. State, 50 Tex. Cr. R. 151, 94 S. W. 1060; Combs v. State, 55 Tex. Cr. R. 334, 116 S. W. 584; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Green v. State, 31 S. W. 386; and cases cited in 5 Enc. of Law & Prac. 389.

Those bills in the record which show that, when attempting to prove up contradictory statements of the witness Cornett, the-defendant also desired to prove what the witnesses had said to Cornett at that time. In refusing to permit such statements to be introduced in evidence the court did not err, as it was not necessary to render plain the statement of Cornett. What these witnesses may have said to Mr. Cornett would not be admissible as original evidence, and would not tend to impeach him.

Several physicians testified in the case, and after qualifying and testifying to an examination of the wound in the arm, there was no error in permitting them to state as to the length of time the wound had been inflicted at the time of the examination. In their testimony they gave as a reason the condition of the wound, describing it, flow of blood, etc., and such facts and circumstances as enabled them, with their medical knowledge, to testify in regard to such matters.

A witness testified that he saw appellant in Greenville on the night of the burglary at 10 or 15 minutes to 12 o’clock. On cross-examination by appellant it was shown this witness knew the time by reason of the fact that he had been so informed by another person when appellant moved to exclude the testimony. The time this witness saw the appellant was not a material issue in the case, but only the fact that he had seen him in Greenville that night; consequently the court did not err in the matter.

But if this should be held to be error, it would be no ground for reversal, because the appellant proved the same facts by defendant’s father and mother and other witnesses, so that the fact that appellant was in Greenville on the night of the burglary ceased to be a contested issue.

There are a number of bills in the record relating to a question of whether or not the jury discussed the failure of defendant to testify on the trial of the case before they arrived at their verdict.

In the first place, it may be said that the testimony heard on this motion was not filed in the court below until February 15, 1913, when the court had adjourned on the 31st day of the preceding November. Being filed after term time, it cannot be considered. Probest v. State, 60 Tex. Cr. R. 608. 133 S. W. 263.

In the next place, it may be said that the affidavits raising this issue were sworn to before one of the attorneys in this case, and on motion of the state were stricken from the record for this reason, and in this the court did not err. Mapies v. State, 60 Tex. Cr. R. 169, 131 S. W. 567.

But should we ignore these matters, and consider the affidavits, evidence, and all proceedings had in this matter, the foreman of the jury testified: “I was the foreman of the jury that tried Lewis Pullen at this term of the court for burglary. When the jury was charged and we went out in the room to deliberate on the case, the first thing done by the jury was to elect a foreman. I was elected foreman. The next thing done, I read the charge to all of them. Then we took a ballot. The result of that ballot was nine ‘guilty’ and three ‘not guilty.’ The first thing that was done after that ballot was taken was Mr. Abernathy was the first one spoke. He was over next to the east door. He said, T was one that voted “not guilty,” but I am better satisfied now, and I am willing to reconsider my ballot and go with the majority.’ Mr. Clark was the next man that spoke, and says, T was another,’ and he says, ‘It was funny’— Before he said that though, he said: T wasn’t satisfied in my own mind which way to vote, but I am willing to go with Mr. Abernathy’- — that is, go with the nine. The next was Mr. Reavis. He stood between Mr. Clark and I, and he said, T am the other man, I reckon.’ He says, T voted “not guilty.” But,’ he says, T didn’t have my mind right well made up and wanted to know how much punishment I wanted it the lowest, but I didn’t know how to get it But if you will give him the lowest punishment I am with the bunch.’ If he didn’t say ‘bunch,’ I am mistaken; but. I think he said ‘bunch.’ At this time Mr. Clark said: T think it is funny he didn’t tell us how he got that shot if he didn’t get it there and had that coat in evidence and his arm too/ I had the charge in my hands and raised it up and says to Mr. Clark, I says, ‘We are instructed not to consider that.’ Another gentleman, I can point him out, but I can’t call his name, but he said: T remember that in the charge.’ (Witness here pointed out Mr. Presley.) I opened the charge and read that part of it over aloud twice so that all might understand it thoroughly. Now Mr. Clark telling about coming up there, several did crowd around to see it read, but I read it aloud twice; made three readings of it; I read it the first time before anything was done. Mr. Clark having said this, and Mr. Reavis having said that, I says: ‘It seems all right except the punishment. If you are ready for the ballot, we will ballot over.’ First we were all one way. We didn’t ballot by writing ballot. I said, ‘A rising ballot will do just as well,’ and they all arose up. I said, ‘Are you all ready for the time?’ but I says, ‘You all ought to write it because I don’t like to see jurors vote like the others do,’ and they all put down on it ‘two years,’ the whole twelve of-us; there was one or two, or maybe three, said, ‘Guilty, two years,’ and I take it it was those that voted ‘not guilty’ before put that, ‘Guilty, two years.’ What I, have stated here was the only reference made in the jury room to the defendant’s failure to tell how he got the wound.” Seven other jurymen also testified, and, taking into consideration the two affidavits filed, would make ten of the jurymen who were heard. The evidence, to our mind, clearly authorized the court to find as he did that the remark was made after the jury had agreed that appellant was guilty, but before the fixing of the number of years of punishment, and as the jury assessed the lowest penalty authorized by law, no reversible error is presented by this ground in the motion for new trial if all defects in presenting the question are waived.

We have carefully considered each bill of exception and ground in the motion for new trial, and no error is presented.

The evidence, we think, conclusively shows the guilt of appellant, and the judgment is affirmed.  