298 S.W. 601


CLAYTON
v.
STATE.


(No. 10989.)


Court of Criminal Appeals of Texas.


June 22, 1927.


Rehearing Denied October 26, 1927.

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.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of 
Austin, for the State.

Page 602

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 appellant 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 of 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. C. § 166, it is stated:

"When an extraneous crime or other transaction is a part of the res gestæ, 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

Page 603

his 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 his father. The father left home on Sunday between 9 and 10 o'clock, 
leaving the gun in the house. He returned home about sundown, 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 barn 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 corner 
of the barn at the time the shots were fired. The testimony makes it reasonably 
certain that the gun found under the barn was the one used by the party firing 
the shots, and that appellant was such party. This being true, 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 
court 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 construction 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.