106 S.W. 347


TINSLEY
v.
STATE

Court of Criminal Appeals of Texas.
November 20, 1907.
Rehearing Denied December 18, 1907.

Page 348

        Appeal from District Court, Freestone County; L. B. Cobb, Judge.

        Columbus Tinsley was convicted of murder in the second degree, and he appeals. 
Affirmed.

        Daviss & Williford, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

        BROOKS, J.

        Appellant was convicted of murder in the second degree, and his punishment 
assessed at confinement in the penitentiary for five years.

        Appellant's bill of exceptions No. 1 shows the following: The defendant waived a 
special venire. The clerk wrote the names of the regular jurors on a slip of paper and 
handed said slip to the defendant's attorneys to pass on, and the talesmen summoned to 
complete said panel were impaneled in the same way. Neither names of the regular jurors 
nor the names of the talesmen were written on separate slips of paper, nor were said 
names put into a box or any other receptacle and mixed, nor were they drawn from a box 
or any other receptacle, and the entire impaneling and organizing of the jury was 
completed without the defendant being present. To the method of impaneling the jury the 
appellant objected in open court, because the method pursued was not in accordance with 
the requirements of the statute. The court approved the bill with this qualification: "The 
case was set on September 3d for trial on the 12th of September, 1907. The defendant's 
counsel waived a special venire. When the time came to organize the jury, defendant 
being present in the courtroom, the jurors for the week were called in, when counsel said 
they objected

Page 349

to the manner of impaneling the jury. The court, not understanding what counsel meant, 
remarked that if they demanded a special venire they might have it. Counsel replied that 
they had waived a special venire and did not ask for it. The court then said: "You may 
take your choice—take a list as usual, or examine the jurors one by one as though they 
were special venire. Counsel made no reply, and without further indication what they 
meant by the objection took the list furnished by the clerk, and after some question to the 
jurors retired and made their peremptory challenges by the erasure of certain names from 
the list. Only six jurors were obtained, and the sheriff under order of court summoned 
talesmen, and a list of those found qualified was given defendant's counsel, who took the 
same without objection, and from the list the other six jurors were taken. At no time did 
counsel intimate that they desired the jurors drawn, and the court was not aware till after 
the trial that they intended to be understood as objecting on that ground, and the court 
was wholly ignorant of the reason that counsel had in mind for objecting to the method of 
choosing or impaneling the jury. If the defendant was absent from the courtroom at any 
time, his absence was voluntary and unknown to the court; and if he failed to assist in 
selecting his jury it was of his own free will." Clearly, under the explanation and 
modification of the bill by the court, there could be no serious criticism of its action. 
Appellant had waived a special venire and failed to indicate any objection to court, such 
as they urged in the bill of exceptions. We accordingly hold there was no error in the 
impanelment of the jury.

        Bill of exceptions No. 2 shows that the state's witness Harrison Gambol, a brother-
in-law of the deceased, was permitted to produce as evidence before the jury an empty 
cartridge shell of the caliber 38-40 U. M. C., and to testify that he found said empty 
cartridge shell in his cotton patch 400 or 500 yards west of where deceased was shot, and 
in the opposite direction from defendant's home; that there were no tracks leading from 
said empty cartridge shell toward the place where deceased was shot, nor toward 
defendant's home, nor any tracks leading from where deceased was shot to where said 
shell was found, to which testimony defendant's attorneys objected, and asked that it be 
excluded from the jury, because there was no evidence that deceased was shot with a ball 
or bullet of this caliber, nor was there any evidence which identified or in any manner 
sought to establish that defendant, or any other person, ever owned or had or saw a pistol 
or rifle or gun of this caliber; because the testimony was too remote; and said shell was 
found too far removed from the scene of the shooting to shed any light upon it, or serve 
as a circumstance to explain it, or identify the person who did the shooting; that said 
testimony could and did serve no other purpose except to prejudice the minds of the jury 
against the defendant—all of which objections were overruled by the court and the bill 
was signed with the following qualification: "The witness stated that he found the shell as 
he was crossing the field and did not trace the tracks." We hold that said testimony was 
not admissible. It could not shed any possible light upon the perpetrator of this homicide, 
nor could it possibly show any connection of appellant therewith. The evidence for the 
state in substance shows that deceased was shot while going from Harrison Gambol's 
home, about 200 yards away from his home, to the home of the deceased; the shooting 
taking place very close to deceased's home. Upon being shot, the deceased holloed: "Oh, 
Lordy! I am shot!" His brother-in-law came out on his gallery, upon hearing the shooting 
and holloing. The deceased called witness and told him to come there. Witness told 
deceased to come to him. Deceased again holloed: "Oh, Lordy! I am shot!" Witness went 
to meet him about 30 or 35 yards from witness' house. Deceased was staggering. Witness 
caught hold of him and laid him down. "He said: `I am gone.' I carried him to my house, 
and laid him on a pallet my wife made down on the floor for him. I then asked him who 
shot him, and he said: `Columbus Tinsley shot me.' Deceased said appellant came from 
behind the corner of the house and shot him. When deceased called me, he was coming 
towards my house. He called Mr. Drake, and also called Nancy Jackson." When the 
constable arrested appellant on the morning after the killing, he was in his father's field 
plowing. The constable told him that John Waters got shot last night, and that he had a 
warrant for his arrest, charging him with the shooting. Appellant said: "All right; but I did 
not do it. I did not leave home last night." The constable further stated that appellant did 
not appear disturbed or frightened or in any way out of the ordinary bearing when he 
arrested him. This testimony was only controverted in part by three or four witnesses and 
appellant, as far as the declaration of the deceased was concerned. Several witnesses for 
appellant swore: That they heard the shot, heard deceased hollo: "Oh, Lordy! I am shot! 
Harrison, run here!" That Harrison Gambol replied: "No, you come here." That deceased 
said: "No; I am shot. I can't come there." Harrison replied: "Who shot you?" Deceased 
said: "I don't know." Appellant, as stated, introduced several witnesses who swore that 
this was the res gestæ statement made by the deceased. Now the question recurs, in the 
light of this record and the above statement of the facts: Did this testimony about the 
cartridge, which was found 400 or 500 yards away from the deceased's house, where he 
was shot, in any way injure the rights of the appellant? We say, "No." If the testimony 
had shown that a track had been traced from deceased's house

Page 350

to where the cartridge was found, without in some way identifying the track with the 
track of appellant, it could not help the state's case; and the bill of exceptions shows, with 
the qualification of the court thereon, that no effort was made to trace the tracks, or any 
tracks, or to ascertain the size of any tracks, around the place where the cartridge was 
found, and the testimony, as appellant insists, is too remote and throws no light upon the 
transaction. Then, if it does not, in the light of the above statement of facts, how could it 
injure appellant? In other words, the bill merely shows that the witness swore that he 
found a cartridge 400 or 500 yards from the scene of the shooting. There is no effort to 
identify it with any cartridge appellant had, no effort to show that the cartridge was the 
same size of the bullet in the body of deceased, nor in any way to connect, as far as this 
bill shows, the cartridge with the killing. It is not all evidence that will reverse a case, but 
it must be of such a character that it would have a tendency to prejudice appellant. One of 
the safe rules in ascertaining whether it prejudiced appellant is the question: Did the 
evidence in any sense tend to strengthen the state's case? By no process of reasoning can 
it be so construed. Then, how could it hurt appellant, if it did not help the state? It is an 
isolated incident, disconnected from and disassociated from and in no sense connected 
with anything pertaining to this case; and, while it is clearly inadmissible, its introduction 
was entirely harmless. We accordingly hold that, while inadmissible, it was not such error 
as would authorize a reversal of this case.

        Bill of exceptions No. 3 shows that the state introduced the clothing of deceased in 
evidence, and one of the attorneys for the state shook said clothing around before the jury 
and commented on same. Such introduction of said clothing, and the display and 
commenting on same, was all objected to by the defendant at the time, upon the 
following grounds: (1) There was no question or controversy as to the character, 
condition or location of the wound; (2) there was no question or controversy that it was a 
fatal wound and was the cause of deceased's death; (3) there was no question or 
controversy as to the direction of the ball or the extent to which it penetrated; that said 
testimony did not tend to illustrate any point, or make manifest or throw any light on any 
issue in the case; and, lastly, that it did tend to prejudice the defendant before the jury. 
The court overruled said objections and admitted said clothing in evidence, with said 
display of same and the comment thereon. This bill is approved with this modification: 
"Appellant objected to showing the clothes to the jury, as they were being used by the 
state's witness to locate the point of entering of the bullet. The clothes had been washed, 
and showed only a small hole where the witness said the bullet entered. The court thought 
the garment was admissible for that purpose. No one attempted to inflame the mind of the 
jury by referring to them. The state's attorney merely showed the jury where the ball 
entered the clothes and laid them on a chair or table before the jury." This evidence is 
very much like the evidence above complained of—inadmissible. As appellant insists, 
there was no question but what the bullet killed the deceased. There was no question as to 
where it entered his body. While the bill complains of comments upon the clothing, it 
does not show what the comments were, and hence said comments cannot be passed upon 
by this court. The court, however, says there was no attempt to inflame the minds of the 
jury by referring to them; that the state's attorney merely showed the jury where the ball 
entered the clothing. These clothes ought not to have been admitted. They did not 
illustrate or make manifest any issue in the case, or demonstrate any controverted fact; 
but this would not call for a reversal of the case. How or in what way could the sheer fact 
of bringing the clothes and showing where the bullet entered them injure appellant? 
Appellant had never controverted the fact as to where the bullet entered the clothing. 
Then to prove by the clothes themselves where the bullet entered could not prejudice him 
in the trial of this case. The court says the clothes had been washed. This would eliminate 
any gruesome appearance and prejudicial effect they might have had, if they had been 
bloody. We have repeatedly and repeatedly held that this character of evidence should not 
be introduced, unless the clothes were pertinent on some controverted issue in the case. 
We have never held, however, that we would reverse a case where our attention has been 
called to the sheer fact that clothes were introduced. Their introduction in this case is 
rendered entirely harmless in the light of this bill. In other words, the clothes merely 
show, as shown by the bill, where the bullet entered. This was not controverted. Then to 
prove a fact that was not controverted, by the clothes or any other method or means, 
could not be a basis for reversing a case. We hope trial courts, however, in the future will 
not permit clothes introduced, unless they do bear on some pertinent relation to the trial 
of the issue then being passed upon. We accordingly hold that the error was harmless in 
the light of this record.

        Bill of exceptions No. 4 shows that the state's witness Sam Thomas testified that he 
was at the house of the defendant's father on the second Sunday in November, A. D. 
1906, before the alleged shooting on February 8, 1907; that defendant lived with his 
father and mother; that defendant had just stepped outside of the house, and came back 
into the room where he (witness) was, and took a pistol out of his pocket and put it on the 
table; and that he did not know what was the size or caliber of the pistol, nor to whom it 
belonged.

Page 351

To the introduction of this testimony appellant objected on the ground that it was 
irrelevant, immaterial, and too remote to shed any light upon the transaction under 
investigation, or to be considered even as a circumstance in connection therewith, and 
because said testimony was evidence of another and different and distinct and separate 
offense —if evidence of anything—which was in no way connected with or served to 
explain the matter under investigation. The testimony is neither irrelevant, immaterial, or 
too remote. It is true it sheds very little light upon the transaction under investigation; but 
to prove that the appellant, a short while before, was seen carrying a pistol, as the 
circumstances of this case show with reasonable certainty that the shot that killed 
deceased was from a pistol, is a small circumstance or criminative fact going to connect 
appellant with this homicide. The fact that it proved very little against him did not 
preclude its admissibility. The weight of the testimony is for the jury, and the sheer fact 
that it had very little criminative effect, if any, would not exclude it, and the fact that he 
was seen with a pistol, being another offense, would not exclude the proof of the fact in 
the subsequent trial of appellant for homicide. We can readily see one or two cases where 
the evidence could be used as stated. For instance, the jury may say it shows a familiarity 
with the use of firearms. The fact of carrying it would carry with it the suggestion that he 
knew how to use it, and to this extent would be criminative, though perhaps a small 
criminative fact, against appellant. A great many people know how to use firearms. This 
fact could be used by appellant against the probative force of the testimony, but it would 
not preclude its admissibility in the trial of appellant for homicide. The testimony was 
admissible.

        Bill of exceptions No. 5, shows the following: The state introduced Harrison 
Gambol, Missouri Gambol, Nancy Jackson, and M. M. Drake, who testified to the 
following: "That after the deceased had gone to Harrison Gambol's house, and had been 
carried into Gambol's house and laid on a pallet, Harrison Gambol asked him, `Who shot 
you?' and the deceased replied, `Duke Tinsley.' Still later, in reply to the same question 
from Nancy Jackson, he answered, `Duke Tinsley'; and still later, in reply to the same 
question from M. M. Drake, he answered, `Duke Tinsley.'" Appellant objected to same 
because it was not the facts talking through the witness, but the witness talking about the 
transaction, which had been over 10 minutes or longer. It was not the first statement he 
made, and, being made after he had become composed and had time for reflection, was 
not admissible as res gestæ that it was hearsay, and too remote to bring it within the 
exception. This bill is approved with the following modification: "The testimony of 
Drake shows that it could not have been 10 minutes from the shooting till all these 
statements were made, and they were admitted as res gestæ." The statement of facts 
shows that the appellant was known by the name of "Duke Tinsley." The explanation of 
the court shows clearly that the testimony was res gestæ, and therefore clearly admissible. 
Mahoney v. State, 98 S. W. 854, 17 Tex. Ct. Rep. 818.

        In his motion for a new trial appellant complains that the court erred in refusing to 
give the following charge: "Gentlemen of the jury, the defendant in this case has 
introduced evidence that at the time the deceased was shot, if he was shot, he (the 
defendant) was not at the place where the shooting occurred. This in law is termed an 
`alibi,' which is defined thus: When a person charged with a crime proves that he was, at 
the time alleged, in a different place from that in which it was committed. Therefore you 
are instructed that if you entertain from the evidence in this case a reasonable doubt of the 
presence of the defendant at the place where deceased was killed at the time of the 
killing, and if from the evidence you entertain a reasonable doubt that at that time he may 
not have been elsewhere, he is entitled to the benefit of such doubt, and you will acquit 
him." This charge has been approved by this court. Caldwell v. State, 28 Tex. App. 566, 
14 S. W. 122; Hill v. State, 37 Tex. Cr. R. 415, 35 S. W. 660; Watson v. State, 28 Tex. 
App. 34, 12 S. W. 404. It is the better practice not to attempt to define technical terms, 
such as "alibi," as appellant insists. Often it is unintelligible to the jury.

        Appellant complains that the court failed to charge the jury on the law of 
circumstantial evidence. In this there was no error, since the res gestæ declaration of the 
deceased takes the case out of the rule of circumstantial evidence.

        Appellant complains of the following charge of the court in bill No. 10: "In case you 
are satisfied beyond reasonable doubt that defendant is guilty of murder, but have a 
reasonable doubt as to the degree, you will give him the benefit of the doubt and convict 
of murder in the second degree." Appellant objects to this charge on the ground that the 
same is on the weight of the evidence, and is an intimation to the jury that the court 
thought the defendant guilty of murder in some degree. We cannot see how or in what 
way it was a charge on the weight of the evidence, or an intimation to the jury that the 
court thought appellant guilty of murder in some degree. It is always proper for the court 
to charge the jury, if they have a reasonable doubt as to the degree, to find the defendant 
guilty of murder in the second degree.

        Bill No. 11 complains of the following: After the jury had retired for a day and a 
half and a night, they came into the court, and the court asked them if they had agreed on 
a verdict. The foreman said they had. The verdict was handed to the court, and

Page 352

same read as follows: "We, the jury, find the defendant guilty, and assess his punishment 
at confinement in the state penitentiary for a term of five years. G. W. Williamson, 
Foreman." Whereupon the court remarked: "You have not said what you find him guilty 
of." The foreman replied: "Manslaughter, or murder in the second degree." The court at 
once wrote a line in the verdict, so as to make it read as follows: "We, the jury, find the 
defendant guilty of murder in the second degree, and assess his punishment at 
confinement in the state penitentiary for a term of five (5) years. G. W. Williamson, 
Foreman." The court then read the verdict as he had revised it, and asked: "Is that your 
verdict?" Some of said jurors said "yes," some nodded their heads, and some said 
nothing. Appellant complains that this action of the court was without authority of law, 
was an invasion of the province of the jury, was without the sphere of the court's duty, 
and wholly beyond its power and authority. This bill is approved with the following 
modification: "The jury was organized on the 12th, and the trial was concluded about 6 p. 
m. the 13th, and the jury came in with verdict about 5 p. m. on the 14th. Verdict was as 
above quoted, and did not designate the offense, and the court then asked the jurors of 
what offense they had found the defendant guilty, and one of them (the foreman, as now 
remembered) said, `Of murder in the second degree or manslaughter,' to which the court 
replied that they could not convict of manslaughter, but of murder only, and then the 
juror replied, `Of murder in the second degree, then,' or words to that effect, and the court 
wrote in the words `of murder in the second degree,' and read the verdict as so amended 
to the jurors, and asked them if that was their verdict, and they all signified their assent 
by words or nods. The defendant and his attorneys were present, but did not object to the 
proceedings, and only after the jury had been discharged did one of the defendant's 
counsel suggest to the court that there might be error in the matter." The court in this case 
did not charge upon manslaughter, but only charged upon murder in the first and second 
degrees. The jury brought in a verdict of five years, which merely meant murder in the 
second degree. Therefore the action of the court could not have been prejudicial to the 
rights of appellant in making the verdict formal as is required by law, and especially so 
with the jury acquiescing and consenting thereto.

        The appellant further insists that the evidence is insufficient to support this verdict. 
The facts show that defendant and deceased had one or more difficulties a few months 
prior to the difficulty in which deceased lost his life, in one of which previous difficulties 
deceased shot at the appellant, thus showing the bitterest character of feeling from the 
state's standpoint. It is true that appellant denies the latter statement, and says that he and 
deceased had made friends. The state's evidence further shows that deceased was 
approaching his home about 8 o'clock at night, as above stated, when appellant stepped 
from behind the house and shot him. This statement was made by deceased to three or 
four parties within 10 minutes after the shooting. This res gestæ statement has the same 
force and potency in law as dying declarations, and in some respects is perhaps a stronger 
criminative statement. Many cases in the books report a conviction upon dying 
declarations of the deceased alone. We therefore accordingly hold that, the jury having 
passed upon the credibility of the witness, the evidence in this case warranted their 
finding him guilty. It may be that in sheer deference to the evidence the jury gave him the 
minimum punishment for murder in the second degree; but this would not be an argument 
in favor of the proposition that the evidence would not support a conviction for murder in 
the first degree.

        So believing, we hold that the evidence in this case is sufficient to support this 
verdict; and, finding no error in the trial thereof, the judgment is in all things affirmed.

        HENDERSON, J., absent.