Gillespie v. State , 80 Tex. Crim. 432 ( 1916 )

ON REHEARING. December 20, 1916. I was not present when the original opinion was handed down, and as my brethren are unable to agree in the disposition of the motion for a rehearing, I have taken the record and studied it carefully and thoughtfully.

I agree that the clothing was inadmissible. When the physician described the location, nature and character of the wound, no question was raised by appellant that he correctly presented the matter. Appellant introduced no testimony to vary the State's testimony on this issue, and the testimony of the State was clear and unequivocal. Therefore, the clothing was not necessary to show the nature or character of the wound, nor the relative position of the parties at the time the fatal wound was inflicted. I, therefore, agree with Judge Davidson in holding that the bloody clothing was inadmissible.

I also agree with Judge Davidson in holding that the conversation had with the witness Williams was admissible under the res gestae rule that has long been in force in this State.

On the other questions discussed by Judge Davidson, I do not agree with him. The court refused the bills in regard to argument of counsel; therefore, these matters are not properly verified and would present no error. As the charge on self-defense was full and fair, and no limitation placed thereon in any respect, there was no error in refusing the special charge requested. Williford v. State, 38 Tex.Crim. Rep.; Harrelson v. State, 69 Tex.Crim. Rep.; Fox v. State, 71 Tex.Crim. Rep..

On account of the matters first herein referred to, I join in the order overruling the motion for rehearing.

Overruled.