
    CLAYTON v. STATE.
    (No. 10989.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    Rehearing Denied Oct. 26, 1927.
    1. Criminal law <&wkey;1169(2) — Admission of testimony of prosecuting witness’ statement to state’s attorney, if error, was harmless, where defendant gave similar testimony without objection.
    In prosecution for assault with intent to murder, testimony by prosecuting witness concerning prior statement made by him to state’s attorney relative to reason for making trip to East Texas, though inadmissible, was harmless, where record showed state’s witness and defendant gave similar testimony without objection.
    2. Criminal law c&wkey;369(3) — Homicide «©=>160 —Testimony as to finding gun taken from owner’s house and alleged to have been used by defendant in assault with intent to murder was admissible.
    In prosecution for assault with intent to murder, testimony relative to finding of gun alleged to have been used in shooting, and that gun was missing from owner’s home on evening preceding shooting, and that window in house had been torn open, tended to show gun was one used in assault and that defendant obtained gun by going through window, was not objectionable as proof of extraneous crime or as insufficient to show defendant was ever in possession of gun.
    3. Criminal law <©=>726 — Bill of exceptions to district attorney’s remarks that defendant failed to call witness subpoenaed, qualified to show defendant made similar reference to state, showed no error.
    Bill of exceptions to refusal to instruct jury to disregard remarks of district attorney that defendant subpoenaed wife of prosecuting witness but did not put her on stand, qualified to show that argument was in reply to argument of defendant’s counsel referring to fact that state subpoenaed witness but failed to call her, showed no error.
    4. Criminal law &wkey;>720Zz — District attorney’s argument that he believed defendant guilty on he would not prosecute him held mere conclusion properly made.
    Argument of district attorney that'it was his personal opinion that defendant was guilty or he would not prosecute Mm only amounted to his conclusion based on evidence, which he had right to state to jury.
    5. Criminal law <&wkey;409l (8) — Bill of exceptions to district attorney’s argument that grand jury thought defendant guilty, qualified to show statement was denied and not recalled by court, held no bill.
    Bill of exceptions to argument of district attorney that grand jury thought defendant was guilty or they would not have indicted him, qualified to show that court was unable to recall any such argument and that district attorney denied making such statement, was equivalent to no bill.
    On Motion for Rehearing.
    6. Criminal law <&wkey;>404(3) — Homicide <&wkey;>!73 —Testimony as to finding gun and gun itself held properly admitted in prosecution for assault with intent to kill.
    In prosecution for assault with intent to kill, testimony as to gun found on premises where defendant lived within close proximity to place of shooting tended to show that gun was used by party doing shooting and that defendant was such party, and hence testimony and gun were properly admitted in evidence.
    7. Criminal law <&wkey;4092(l!) — Bill of exceptions, must be considered without qualification where another bill excepts to qualification (Code Cr. Proc. 1925, art. 667; Rev. St. 1925, art. 2237, subds. 7-9).
    Under Code Cr. Proc. 1925, art. 667 (Rev. St. 1925, art. 2237, subds. 7-9), where bill of exceptions is filed for purpose of bringing forward an exception to qualification placed on prior bill of exceptions, prior bill of exceptions must be treated without qualification.
    8. Criminal law &wkey;>l09l(2) — Bill of exceptions to .court’s statement, “I think so,” in answering contention against admission of gun in evidence, did not show comment on evidence.
    Bill of exceptions to remarks of court, “I think so,” in answering defendant's contention that gun used in shooting should not be admitted in evidence, not stating words used in urging objection, did not show comment by court on evidence, but merely indicated opinion that evidence objected to was admissible.
    Commissioners’ Decision.
    Appeal from District Court, Freestone County; W. T. Jackson, Judge.
    Elgin Clayton was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    R. G. Flaherty and Williford & Geppert, all of Teague, for appellant.
    gam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of assault with intent to murder, and his punishment assessed at four years in the penitentiary.

The appellant was charged by indictment with shooting Sam Jones with a gun on or about November 22, 1926. It appears that Sam Jones was living with his wife in a servant house upon premises belonging to A. J. McKinney, and that the appellant was living in a servant house upon the adjoining premises. It further appears that just after dark on the date of the alleged offense, while Sam Jones was standing in the door of his house, facing the interior, he was shot twice in the back.

It was the contention of the state, and evidence was introduced to that effect, that the appellant was the party who shot Sam Jones at the time in question. Sam Jones testified for the state, and positively identified the ap'pellant as being the guilty party, stating that he saw his assailant in the flash of the gun and in the ray of light passing from the room in which he stood. The appellant’s defense was that of an alibi. The record contains nine bills of exception.

In bill No. 1 complaint is made to the action of the court in permitting the state, on direct examination of the witness Sam Jones, to interrogate him concerning a prior statement made by him to the state’s attorney relative to his reason for making a trip to East Texas. It appears from this bill that the witness’ answer was not in response to the inquiry made of him, and did not show that he ever made the statement inquired about to the state’s attorney. Furthermore, the record discloses that both the state’s witness McKinney and appellant gave testimony of similar import, without objection, which would render the testimony of Sam Jones on this point harmless, even though inadmissible.

Bills 2 and 8 complain of the action o’f the court in permitting the state’s witnesses to testify concerning and exhibit in the presence of the jury the gun which the state contended was used in the shooting and which was found by the officer Jim Wasson under a barn on the premises where appellant lived and within close proximity to the place where the shooting occurred. The objection urged was that the evidence was insufficient to show that the appellant was connected in any way with the gun in question. We are not in accord with this contention, and are of the'opinion that under the facts of this case the finding of the gun was a circumstance tending to connect appellant with the offense charged against him, and that the testimony objected to was admissible for that purpose.

Bills 3 and 9 complain that the trial court, in answering the contention of appellant’s counsel to the effect that the gun referred to should not be admitted in evidence, stated, “I think so.” The court qualifies these bills by stating that the remark was made to appellant’s counsel, and was not a comment on the weight of the evidence. We are of the opinion that these bills, as presented, show no error.

In bills 4 and 5 complaint is made to the refusal of the court to exclude from the jury all of the testimony introduced by the state relative to the gun in question, and to the admission of the testimony of the state’s witness Will Jones to the effect that said gun was missing from his house on the 'evening preceding the shooting, and that, when he missed the gun, he noticed that one of his windows had been torn out of his house. The •objection urged to the action of the court in overruling appellant’s motion to exclude the testimony from the jury is that the evidence was insufficient to show that the appellant was ever in possession of the gun, and that the testimony of the witness Will Jones amounted to proof of an extraneous crime which would tend to inflame the minds of the jury. We are not in accord' with either of these contentions. What we have said relative to bills 2 and 8 applies to the first contention, and the testimony of the witness Will Jones, when taken in connection with the other evidence introduced by the state, tended to show that the gun which was missing from the home of Will Jones was the one used in the assault, and that the appellant obtained said gun from the witness’ house by going through the window, thus tending to connect appellant with the offense for which he was on trial. In Branch’s Ann. P. O. § 166, it is stated:

“When an extraneous crime or other transr action is a part of the res gestae, or tends to show intent when intent is an issue, or tends to connect defendant with the offense for which he is on trial, proof of same is admissible”— citing Long v. State, 11 Tex. App. 387, Johns v. State, 76 Tex. Cr. R. 303, 174 S. W. 610, and many other authorities.

In bill 6, complaint is made to the action of the court in refusing to instruct the jury to disregard the remarks made by the district attorney, in his closing argument to the jury, to the effect that the appellant had subpoenaed the wife of the prosecuting witness, and that she had been in attendance at the trial, but that appellant had not put her on the stand as a witness. The court qualifies this bill by stating that the argument objected to was in reply to argument made by appellant’s counsel wherein he referred to the fact that the prosecuting witness’ wife had been subpoenaed by the state and not used as a witness, and further qualifies the bill by stating that the wife of the prosecuting witness had been subpoenaed both by the state and by appellant. This bill shows no error.,.

Bill 7 complains of the argument of the district attorney to the effect that it was Ms personal opinion that the appellant was •guilty, or he would not prosecute him, and that the grand jury thought he was guilty or they would not .have indicted him. In qualifying this bill, the court states that he is unable to recall any such argument made by the district attorney relative to the grand jury, and that the district attorney denied having made any such statement. This bill of exception, as qualified, is equivalent to no bill at all in so far as the second part of the alleged argument is concerned, in that the court fails to certify that the statement complained of was actually made, and the other portion of the argument, as to the opinion of the district attorney, only amounted to his conclusion based upon the evidence, which he had a right to state to the jury.

Finding no reversible error in the case, the judgment»of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant seriously contends that the gun should not have been admitted in evidence because not shown to have been used by appellant, and for like reason that evidence of finding the gun under the barn should have been excluded.

The gun in question belonged to the assaulted party’s brother, but was at the home of hi's father. The father left home on Sunday between 9 and 10 o’clock, leaving the gun in the house. He returned home about sun-, down, and the gun was gone; the west window being torn open. A witness was with appellant at the house during the time the owner was away, and each of them looked through the window to ascertain whether he was at home. At that time the witness saw the gun, and, while he could not testify that appellant saw it, the latter had equally as good an opportunity of seeing it as did the witness. Sam Jones was shot on the following Monday night shortly after dark. Appellant lived upon Frank Bounds’ place, only about 40 feet from the house occupied by Sam Jones and his wife. The officer who reached the place of the shooting within a few minutes after it occurred found the gun in question under the Bounds barn. He testified to finding tracks at the southeast corner of the bam which went from there over the fence to the back of the barn where the gun was found. Sam Jones testified that he identified appellant as the party who fired twice at him on the night in question, and that appellant stood at the southeast comer of the barn at the time the shots were fired. The testimony makes it reasonably certain that the gun found under the bam was the one used by the party firing the shots, and that appellant was ,such party. This being tme, it was not improper to admit the gun in evidence nor the statements of the officer as to where he found it. Neither do we think, under the facts of this case, there was any violation of the rule inhibiting proof of extraneous crimes in showing how the gun with which the offense ' was committed was obtained, although the manner of its removal from the owner’s house may have indicated the commission of another offense.

In discussing bill of exception No. 3 the writer of the original opinion considered it in connection with bill of exception No. 9, evidently overlooking the fact, which is now called to our attention by the motion for rehearing, that the bill last mentioned was for the purpose of bringing forward an exception to the qualification placed upon bill No. 3 by the court. This being true, we must of necessity consider bill No. 3 without the qualification. C. C. P. 1925, art. 667; R. C. S. 1925, art. 2237, subds. 7-9; Dowd v. State, 104 Tex. Cr. R. 480, 284 S. W. 592; Ariola v. State, 105 Tex. Cr. R. 563, 289 S. W. 385; Dailey v. State, 106 Tex. Cr. R. 99, 291 S. W. 242; Barton v. State (Tex. Cr. App.) 294 S. W. 1112. It is claimed that bill No. 3 reflects a comment by the cou!rt on the weight of the evidence admitted over appellant’s objection. We are of opinion it does not reveal such fact. The words used in urging the objection are not stated in the bill without which the language used by the court cannot be construed as a comment on the evidence. There is a statement in the bill embraced in brackets, but we cannot regard the words in the brackets as a certificate by the court that he intended to convey an opinion regarding the evidence objected to. It appears to be the constmction sought to be placed upon the court’s language by appellant. We are inclined to the view that the language used by the judge indicated that in the court’s opinion the evidence objected to was admissible.

Appellant’s motion for rehearing is overruled. 
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