Ingram v. State , 78 Tex. Crim. 559 ( 1916 )

Appellant's able counsel have filed an exhaustive motion for a rehearing, and a learned argument thereon, — the motion itself containing some fifty-nine pages of typewritten matter, while the argument embraces some thirteen pages of printed matter. We have carefully and thoughtfully read the papers filed, and re-read the entire transcript, and we find all of appellant's contentions summarized in the concluding paragraphs, which read as follows:

"The opinion shows that, in disposing of this appeal, the court pointedly fails to follow and apply the holding of all former authorities in the following particulars, towit:

"1. Considering the proceedings relating to the erroneous exclusion of the testimony of the witness Will Yates, as actually set forth in the record, the court's disposition of the error shown ignores the text of section 947, 2 Wharton, Crim. Ev. (10th ed.), pages 1826-1827, and overturns the holding in Turner v. State, 46 S.W. Rep., 830, and in other authorities cited in appellant's brief.

"2. Considering the proceedings relating to the erroneous admission in evidence of the written statement of the witness Cozier Walker, as actually set forth in the record, the court's disposition of the error shown pointedly disregards the holding in Knight v. State, 65 S.W. Rep., 88, and in other authorities cited in appellant's brief.

"3. Considering the proceedings relating to the misconduct of the district attorney in demanding that appellant ``tell the jury when and why you were expelled from the Odd Fellows,' as actually set forth in the record, the court's disposition of the error shown either overlooks or disapproves the holding in Tijerina v. State, 74 S.W. Rep., 913; Levinski v. Cooper, 142 S.W. Rep., 959, and in other authorities cited in appellant's brief.

"4. Considering the proceedings relating to the misconduct of the district attorney in his closing argument to the jury, as actually set forth in the record, the court's disposition of the errors shown is in total disregard of the holding in Millner v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 348, and in other authorities cited in appellant's brief.

"5. Considering the proceedings relating to the erroneous admission in evidence of the impeachment testimony of the witness Woolly, as actually set forth in the record, the court's disposition of the error shown is contrary to the holding in Woodward v. State, 97 S.W. Rep., 499, and in other authorities cited in appellant's brief.

"6. The failure of the court to reverse the judgment because of the erroneous admission in evidence of the testimony of the sheriff, Allen Hooks, is contrary to the holding in Gardner v. State, 11 Texas Crim. App., 265, and in other numerous authorities.

"The court's opinion, affirming the judgment, not only misinterprets, in vital particulars, certain proceedings contained in the record, and appears to be based upon a material misconstruction of the proceedings set forth and relied upon by appellant to show serious and reversible errors, but is so at variance with former holdings of this court and with other universally accepted authorities as to present not only confusion, but irreconcilable conflict of opinion on the questions involved.

"1. The opinion holds, and in affirming the judgment applies the holding, that in testing the sufficiency of evidence relied upon to corroborate an accomplice, such evidence may be considered and interpreted by, and construed in the light of, the accomplice testimony, — all former decisions holding that in making such test the accomplice testimony must be eliminated. (Smith v. State, 58 Tex.Crim. Rep., 124 S.W. Rep., 919; Hoyle v. State, 4 Texas Crim. App., 239; Hansen v. State, 11 S.W. Rep., 37; Jones v. State, 59 Texas Crim. App., 559, 129 S.W. Rep., 1118, and numerous other authorities cited in appellant's brief.

"2. The opinion, in holding that the evidence supports the judgment, holds that accomplice testimony, if corroborated by other evidence, remotely tending to establish the essential facts at issue, warrants a judgment of conviction — all former decisions holding that to warrant a conviction on accomplice testimony it must be corroborated by other evidence, which, of itself, tends directly and immediately to establish the essential facts at issue. (Clark v. State, 17 S.W. Rep., 942; McCowan v. State, 51 Tex.Crim. Rep., 100 S.W. Rep., 1157; Vails v. State, 128 S.W. Rep., 1117, and other authorities cited in appellant's brief.

"3. The opinion holds in effect that motive on the part of the accused to commit the offense charged is sufficient corroboration of accomplice testimony to warrant a conviction — the earlier decisions expressly and pointedly holding that such motive is not the corroboration of accomplice testimony required by the statute. (Vails v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 1117.)

"If the court has not misinterpreted certain proceedings contained in the record, and if the holdings in the opinion, which are in conflict with former decisions, are advised and not the result of oversight or misconstruction, then it is submitted that the opinion should make special mention of the former decisions with which it is in conflict, and should expressly overrule such decisions, or otherwise reconcile the conflict and dispel the confusion."

It is thus seen that appellant's counsel are insistent that the opinion in this case is in conflict with the former decisions of this court in several material particulars, and, if so, the opinion should not be adhered to, for it was not the intention of the court to overrule a single rule of law announced in the cases cited by appellant, but either the court or appellant is in error in the conclusion reached that the evidence in this case brings the errors complained of within the rules announced in those cases.

The first contention is that in holding that the trial court committed no error in excluding the testimony of Will Yates this opinion is in conflict with the rule of law announced in Turner v. State, 46 S.W. Rep., 830, and other cases cited by appellant, and section 947, 2 Wharton, Crim. Ev. Turner's case, supra, is in no way applicable to the facts in this case. In that case it was held that the appellant should have been permitted to testify that deceased told appellant he had whipped his daughter as having a bearing on the state of mind of the appellant on the issue of manslaughter; and that the daughter ought to have been permitted to testify that her father (deceased) had in fact whipped her for going with appellant. The evidence of Will Yates could not and would not tend to show why appellant killed deceased, if he did do so, nor his state of mind in so doing. In fact, what Will Yates would testify to occurred after the homicide, and could not and would not have any bearing on why appellant killed deceased, if he did so. The homicide in this case occurred in the dead hour of night, while Mr. Ward was asleep, if he did not commit suicide. In Wharton's Criminal Evidence, section 947, the only sentence that could have any bearing on this case is where it is said, "And a satisfactory explanation of suspicious circumstances always operates in favor of the accused." This rule of law we do not question, but if necessary would reiterate, and so held in the recent case of Ward v. State, 78 Tex.Crim. Rep., 180 S.W. Rep., 240, and if the testimony of Will Yates would explain why appellant visited Temple and told Miss Mayse that deceased's father was accusing her sister of murdering her husband, the evidence should have been admitted, and we were in error in holding otherwise. Miss Mayse testified that appellant came to her at Temple one or two weeks after the homicide, on Friday — she thought the 5th of February, — and told her he wanted to see her privately, and told her that "Mr. Ward, Sr., had come to Cameron and was shipping her sister's things (Mrs. Ward, Jr., the wife of deceased) back home, and that he had been investigating the case and he understood was blaming her sister with the homicide, and that he did not think her sister did it, and he thought it was nothing but right to let us know that Mr. Ward, Sr., was trying to blame it on sister." The State did introduce this testimony, as contended by appellant, as one of the circumstances tending to show appellant's guilt; that he made this trip to Temple, and made this statement to Miss Mayse immediately after the discovery of a letter written by him to Mrs. Ward, Jr., — found under the carpet by Tom Jameson. The letter so found is copied in the original opinion. This letter was read by Mr. Jameson and Henry Ruby, and then delivered by them to Sheriff Allen Hooks. This letter, if anything, is apparently what must have caused the talk on the streets of Cameron about which Will Yates would have testified. This is the only conclusion that can be reached from the record before us. It is true Sheriff Hooks showed the letter to Mr. Ward, Sr., who was having the things moved, but there is nothing in the record to show that Mr. Ward made any remark to Sheriff Hooks, Messrs. Jameson and Ruby, or either of them, when he read the letter, and this letter would more clearly point to appellant as the guilty party than to Mrs. Ward, Jr., or any other person. It is perhaps the discovery of this letter that led to appellant's arrest, and in and of itself would be a reason why appellant would visit the sister of Mrs. Ward, Jr., in an effort to get Mrs. Ward away from the home of the father of the deceased where she then was staying, but it would furnish no explanation of this visit to Miss Mayse consistent with his innocence. The fact that shortly after the discovery of this letter appellant visited Miss Mayse and told her that Mr. Ward, Sr., was charging her sister with the murder of his son and thus get her away from Mr. Ward's home and influence, is a strong circumstance against appellant's innocence. Now, if Will Yates would have testified that he told appellant Mr. Ward was charging Mrs. Ward, Jr., with the crime, this would have a tendency to explain his visit, but the bill does not show that Yates would have so testified. All the bill shows is that Yates would have testified: "One morning the defendant, Ingram, was in my shop and I had a talk with him, and said to him, ``Ab, it is rumored that some people think she killed that man and that he did not kill himself.' And he said, ``Surely not.' And knowing that he had something to do with the woman and as he was a friend to me, I said to him, ``Yes, and you had better lay low, for you were mixed up with the woman before this thing come up.'" Does this testimony furnish any reason why appellant should have gone to Temple and told Miss Mayse that Mr. Ward was charging her sister with the crime? Certainly Yates would not have testified he so told appellant, or the bill would have so stated. There is nowhere in the record a suggestion that Mr. Ward, to any person in Cameron, charged his daughter-in-law, Mrs. Ward, Jr., with the crime, and it was an explanation that would not have explained why appellant went to Temple and told Miss Mayse that Mr. Ward was charging her sister with the crime. Mr. Ward's name was not mentioned by Yates, nor does any other person testify that Mr. Ward so stated to any person in Cameron. In fact the record is silent as to what Mr. Ward said in Cameron, if he said anything. It seems as soon as he was placed in possession of the letter found under the carpet he went to his home in Detroit to see his daughter-in-law and asked her about the contents of the letter, and if appellant ascertained that Mr. Ward was in possession of the letter, it furnishes a most cogent reason why he should want Mrs. Ward, Jr., out from under the influence of deceased's father, and the proposed testimony of Will Yates would not explain nor tend to explain why he visited the sister of Mrs. Ward at Temple and told her that Mr. Ward was blaming her sister with the death of his son. Mr. Ward apparently said nothing on his visit to Cameron; at least this record fails to disclose what he said, if he said anything. We are not overruling the case of Turner v. State, supra, nor the other cases cited by appellant on this point, but merely holding that the testimony of Will Yates would not explain nor tend to explain why appellant went to Temple and told Miss Mayse that Mr. Ward, Sr., was charging her sister with the murder of his son, when Yates' testimony shows that he had never heard that Mr. Ward had made such a charge, nor does any other witness testify that Mr. Ward had made any statement in Cameron that put such rumor afloat in Cameron. He was a stranger in that city, while Sheriff Hooks, Mr. Jameson and Mr. Ruby, who also read the letter, resided in Cameron, and if such a rumor was afloat in Cameron the natural inference would be that they and not Mr. Ward had put it in circulation. Mr. Ward was not a witness in this case, and the only intimation in the record that Mr. Ward ever charged his daughter-in-law with the crime is contained in her cross-examination by appellant. She testifies that when Mr. Ward returned to Detroit, where she was staying, that he had the letter written by defendant to her, which was found under the carpet (which appellant admits writing) and is copied in full in the original opinion, Mr. Ward came to her and said, "You or somebody else has killed my son and you've got to come across." That after thinking the matter over, knowing he had the letter, she made a full statement as testified to by her on this trial. This is the only time that Mr. Ward appears to have said anything, under this record, and this was after he had left Cameron and gone back to Detroit, and after appellant's conversation with Miss Mayse. Mr. Ward then got from Mrs. Ward, Jr., what appellant was fearful he would get, and furnishes the reason for his visiting Miss Mayse in an effort to get Mrs. Ward, Jr., away from the home of the father of the deceased.

Appellant, in his argument filed, insists that the objection urged by this court to the admissibility of the testimony was not the objection urged by the district attorney, and cites us to the case of Hunter v. State, 59 Tex.Crim. Rep., and other cases, wherein it is held: "It is well settled in this State that objections to testimony must set forth the objections that were interposed, otherwise the action of the court below will not be revised." To this rule of law we adhere. It is a correct enunciation of the law, and relates solely to testimony admitted on the trial, as will be found by referring to the case above cited and other cases cited by appellant. It has no reference to testimony rejected, and which is admissible under no phase of the case. When testimony is excluded we pass on the question only of whether under the bill and the record it should have been admitted. If the record as a whole, and the bill, demonstrates conclusively that the testimony was not admissible under any phase of the case, certainly the court excluding it would not present error. If the testimony was admissible under any phase of the case, there would be error in excluding it, but if not, it would be immaterial what objection was offered, — the testimony being inadmissible under any theory of the case, the fact that the court gave as a reason for rejecting the testimony a certain reason, or the district attorney stated certain objections, would be immaterial. The question to be decided by us, was the testimony rejected admissible? If so, error would be presented. If not, certainly no error would be presented. It would be the height of folly for us to hold that certain testimony was inadmissible, but because the wrong reason was assigned, the case should be reversed, yet on another trial the court should not admit the testimony.

The next ground is that the court erred in admitting the statement made by Cozier Walker before the grand jury, and that in holding there was no error in admitting it we overruled the case of Knight v. State, 65 S.W. Rep., 88, and other cases cited by appellant. In that case it appears by the opinion that the State introduced Ben Smith as a witness and examined him and he was cross-examined and excused. That the State subsequently recalled him and laid a predicate to impeach him. The court says: "The witness (Ben Smith) had made no statement against the State, but had simply failed to make his testimony as strong as the State desired. This was simply a failure of testimony, and not the statement of a fact damaging to the State." That he could not be impeached under the circumstances stated is correctly held, and we adhere to that rule of law, but it is wholly inapplicable to the facts of this case. The State called Cozier Walker as a witness. On direct examination he testified to facts material to the State. There was a pistol found in the hand of deceased, loosely held. Cozier Walker testified on direct examination: "There was a pistol over there in the market. It was kept under the cash register. It was a kinder short pistol. I could not say that that was the pistol. (.38 S. W. in evidence.) It is one about like that, might have been a little brighter, about the same size and I think it might have been a little brighter. . . . I think it was a pistol the size of that one but might have been a little brighter. It was not a pistol like this (.41). It was not a pistol like this (automatic). Mr. Ingram owned the market. Mr. Ingram owned the cash register. I saw the pistol pretty near all the time I worked there when I looked. When I noticed it would be there." The pistol exhibited to the witness was the pistol found held loosely in the hands of the deceased. On cross-examination his testimony was slightly weakened. He was then excused, but next day was recalled by defendant, and gave affirmative testimony very detrimental to the State, in proving that the pistol held in the hands of deceased was not the pistol of appellant. This was not a failure to testify, but was giving testimony adverse to the State, wholly different to that given by him on the direct examination before being recalled by defendant, and wholly different from that given by him before the grand jury. When before the grand jury he testified: "During the time I worked for Mr. Ingram I would often see a pistol just like the one shown me here, which is a .38 Smith Wesson. This is the same pistol or one just like it. It was kept in a pigeonhole right under the counter near the register. I would see it every time I would go around there. I saw it off and on till Mr. Ingram closed the market. The pistol was rusty just like this pistol shown me." This was the testimony the State had a right to expect the witness would give on the trial of this case. If he had only failed to give this testimony the State would not have had the right to impeach him, but when recalled by the defendant he gave testimony that tended strongly to show that the pistol found in the hands of deceased (a .38 Smith Wesson) was not the pistol he saw in the market, but the pistol he saw in the market was a .41 caliber pistol. As the witness not only failed to testify to facts material to the State's case, as he had testified before the grand jury, but when recalled as a witness testified affirmatively to facts inimical to the State's case, there was no error in admitting the testimony of the witness before the grand jury. We are not overruling the Knight case, supra, but simply adhering to the rule announced in the cases of Baum v. State,60 Tex. Crim. 638, 133 S.W. Rep., 271; Williford v. State,36 Tex. Crim. 414; Self v. State, 28 Texas Crim. App., 398; Clanton v. State, 13 Texas Crim. App., 139, and cases cited in Branch's Criminal Law, sec. 866.

The next contention is that the court erred in holding that there was no error in permitting the district attorney to ask "when and where were you expelled from the Odd Fellows Lodge?" We did not hold that there was no error in permitting the district attorney to ask such question, but what we held was that as appellant in his testimony injected into the case that he was a member of the Odd Fellows Lodge, there was no error in permitting the district attorney to show that at the time of the trial he was not a member of the lodge. We specifically held that the district attorney should not have been permitted to go further, but that as appellant's objections were sustained to the questions propounded, and the jury instructed not to consider such questions, there was no error. This in nowise conflicts with the cases of Tijerina v. State, 74 S.W. Rep., 913; Levinski v. Cooper, 142 S.W. Rep., 959, nor other cases cited by appellant. In the Tijerina, case, supra, it was merely held that questions should not be permitted where the purpose is merely to create prejudice against the defendant, and to this rule of law we adhere. In the case of Levinski v. Cooper, supra, it was held that if the question propounded was of so hurtful a nature that the exclusion of the answer would not cure the error, it would present error. In neither of those cases had it been testified affirmatively by appellant to a given fact that would be beneficial to him, which fact the State knew he was not entitled to have operative to his benefit. In this case appellant had testified he was a member of the Odd Fellows Lodge, which if true would necessarily inure to his benefit on the trial of this case. The State knew, as a matter of fact, when this prosecution arose that the Odd Fellows Lodge had required appellant to withdraw from its membership. If appellant had not sought by his testimony to secure to himself the benefit accruing from membership in so highly respected an order, of course the State should not have been permitted to prove that he no longer was a member of that order. But when appellant, as a witness, testified that he was a member of the Odd Fellows Lodge, hoping thereby to draw to his plea of innocence of this crime the well known and recognized idea that this lodge would not admit to membership men charged with crime until their innocence was known, it was permissible for the State to show that he was no longer a member of that highly respected order. And when the State undertook to go further than this, the court promptly sustained the objection of appellant, therefore no error is presented. The Odd Fellows Lodge is an order highly respected in this State, and each and every juror that might be empaneled would appreciate the fact, and when appellant in this case sought to bring to bear the influence that might be brought to bear by reference to his membership in such order, it was permissible for the State to show that that lodge no longer threw its protecting shield about the appellant. If appellant had not sought to show that he was a member of the Odd Fellows Lodge and thus secure to himself the benefit accruing from such membership, then the testimony introduced by the State should not have been admitted, but when appellant offered evidence that he was a member of the Odd Fellows Lodge, then testimony that he was no longer a member of that order became admissible, and this fact could be shown on cross-examination of him.

Neither do we think this opinion is in any way in conflict with that of Millner v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 355, wherein it was held that the argument of counsel in that case presented error. In that case the objection to the argument was overruled, and the argument permitted. In this case the bill shows the district attorney said: "I want to tell you her (the witness Mrs. Ward) attitude and what she did when she was promised immunity by your good county attorney and myself. When she went into the county attorney's office she said —." Here objections were made to the argument, and the court sustained the objections. However, the district attorney continued and said: "She said, ``Do you want me to tell the whole thing?'" The court then stated: "I have sustained the objection, and I now admonish the jury." The bill further shows the district attorney continued and said, "If you could have seen her then —." Here the district attorney was stopped and the court said, "I have sustained the objection, and told the jury not to consider the objectionable remarks." The district attorney then stated, "If you object, I will withdraw the remark." It is thus seen how wholly dissimilar are the facts in this case to the facts in the Millner case, supra, upon which appellant relies. In this case his objections were sustained, and the district attorney withdrew the remarks. The district attorney did not get far enough along to tell the jury anything Mrs. Ward said or did, but apparently was just on the point of doing so when he was stopped. District attorneys in their zeal should never go out of the record, nor seek to get anything before the jury not in evidence, and if they do so and the trial court does not sustain the objections when made, and the remarks are hurtful and harmful, of course such matter will present error. But if the objections when made are sustained and the jury instructed not to consider the remarks, unless the remarks are of such nature that the harm done can not be removed by instructions not to consider the objectionable argument, no reversible error is presented. If appellant did not think the instructions of the court given at the time he sustained the objections sufficient to remove any and all harmful effect, he should have requested further instructions in writing. This he did not do, and the rule is, as said by the court in Pennington v. State, 48 S.W. Rep., 507, where the remarks were excepted to but no charge in regard to them was asked, no error is presented. See also Trotter v. State, 37 Tex.Crim. Rep.; Miller v. State, 35 Tex.Crim. Rep.; Morris v. State, 35 Tex. Crim. 313; Levine v. State, 35 Tex.Crim. Rep., and cases cited.

The next insistence is that in holding there was no error in permitting V.P. Wooley to testify, "that Wyatt Miller had stated to him he had shadowed his brother (appellant) and saw him throw some money into the yard of Mrs. Ward," appellant contending that such holding is in conflict with Woodward v. State, 97 S.W. Rep., 499. By reading that case it will be seen it was dealing with a wholly different state of facts. In that case it was not in regard to anything the person on trial had said or done, but the witness was asked if he, witness, "had not said there would be somebody killed over there in three days." That was a prediction that a killing would occur, and which did occur, but the person on trial was in no way connected with such prediction or remark being made, and did not know it had been made. In this case Wyatt Miller was a material witness for the defendant, and it could be shown that he had made statements at variance with his testimony on this trial about a matter which was material to the case, — the relation existing between Mrs. Ward and appellant, and such holding is nowise in conflict with the Woodward case, supra, but is in accordance with the rule that has always prevailed in this court. Gonzales v. State, 35 Tex.Crim. Rep.; Newman v. State, 70 S.W. Rep., 951, and cases in Branch's Crim. Law, sec. 871.

It is contended that our holding that the testimony of Allen Hooks was admissible is in conflict with the opinion of this court in Gardner v. State, 11 Texas Crim. App., 265. In that case the wife of deceased was permitted to testify that Gardner had made improper proposals to her, which fact was unknown to deceased. The court held that this fact being unknown to deceased, it could have had no bearing on the difficulty or the cause leading up to it, was testimony which would prejudice the jury against Gardner, and as it had no bearing on the issues involved in the case on trial, it should not have been admitted. What Sheriff Hooks testified to was the frequent use of his telephone by appellant. Certainly appellant knew that he frequently used this telephone, if he did so, and it was a circumstance in the chain of evidence showing the relations existing between Mrs. Ward and appellant. Appellant at the time this testimony was admitted had not testified and it was not known he would take the stand and admit the adulterous relations. It may be true that appellant did not know Sheriff Hooks objected to his using the telephone so frequently, but the sheriff's reasons for objecting, as stated by him, "My phone rings, I expect, 50 or 100 times a day and probably more, and I had to put in long distance calls, and I can not afford to let anyone talk over it long at a time," certainly could in no way be injurious to appellant. The fact testified to by the sheriff, that appellant used his telephone frequently and talked over it a long time, was admissible, when it was further shown that he was talking to Mrs. Ward at those times.

The next contention of appellant is a general assault on the opinion as a whole, and by the remarks used show a misconception of the holding of the court. What we held was that the accomplice testimony might be taken into consideration in passing on the corpus delicti — that is, whether or not Mr. Ward had been unlawfully killed, and such holding is not in conflict with the authorities, but is supported by an unbroken line of decisions by this court. Mr. Branch in his work on Criminal Law, section 235, says the confession may be used to aid the proof of the corpus delicti, citing Kugadt v. State, 38 Tex.Crim. Rep.; Jackson v. State, 29 Texas Crim. App., 458; Anderson v. State,34 Tex. Crim. 546; Gallegos v. State, 48 Tex. Crim. 58; Gallegos v. State, 49 Tex.Crim. Rep.; Attaway v. State, 35 Tex.Crim. Rep.; Lott v. State, 60 Tex. Crim. 162, 131 S.W. Rep., 553; Nicks v. State, 40 Tex. Crim. 1; Cox v. State, 69 S.W. Rep., 145; Landreth v. State,44 Tex. Crim. 239; Austin v. State, 51 Tex.Crim. Rep.; Bradshaw v. State, 49 Tex.Crim. Rep.; White v. State,40 Tex. Crim. 366; Sullivan v. State, 40 Tex. Crim. 633. In this latter case Judge Davidson says: "It is well settled that the confession of the accused alone will not justify a conviction. That question has been frequently decided by the various decisions of this State; but, so far as we are aware, it is settled that the death of the deceased being shown to have been brought about by the criminal agency or procurement of someone, the confession is sufficient to connect the party making the confession with the crime." And in Anderson v. State, this court, speaking through Judge Hurt, held: "The corpus delicti can not be proven by the uncorroborated testimony of an accomplice. Nor can the corpus delicti be proven alone by the confession of the accused. Must it be proven independent of the confession? This is not necessary." Again, in the Kugadt case, supra, that learned jurist held:

"The general doctrine is that extra-judicial confessions, standing alone, are not sufficient proof of the corpus delicti; and some of the cases hold that the corpus delicti must be proved independently of confessions. But we do not understand such to be the better doctrine. In other words, in the establishment of the corpus delicti the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence. See note 3 to case of State v. Williams, reported in 78 Am. Dec., p. 248. And this rule is recognized in this State. See Jackson v. State, 29 Texas Crim. App., 458. Said case quotes with approval an excerpt taken from 4 American and English Encyclopedia of Law, p. 309, as follows: ``A confession is sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant's guilt in the minds of a jury beyond a reasonable doubt.' ``Such suppletory evidence need not be conclusive in its character. When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. "Full proof of the body of the crime, thecorpus delicti, independently of the confession, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient."' 3 Am. Eng. Enc. of Law, p. 447. We take it that there can be no question that the prosecution is permitted to prove by circumstantial evidence the corpus delicti,and in aid thereto use confession of the appellant."

Wharton's Criminal Evidence, section 634 (10th ed.), states the rule to be: "As to the corpus delicti, the evidence need not be direct, but it may be established by circumstances corroborating the confession, and the confession itself may be considered together with all the other evidence to establish the fact that a crime was committed," citing many authorities.

In this case there can be no question that the fact that the dead body of Mr. Ward was found, undressed, lying on his bed with a bullet hole in his head; that this wound caused his death. This is shown by the testimony of Dr. Denson and a number of other witnesses. Appellant sought to inject the issue of suicide in the case by proving statements made by Mrs. Ward and her son on the night of the homicide. There was no direct testimony raising such issue, but it was raised indirectly in this way. In proving that the death of Mr. Ward was caused by unlawful means, must the testimony of Mrs. Ward, a confessed accomplice, be excluded, as appellant contends? Under all the authorities above cited, and we have none in this State holding otherwise, the testimony of the accomplice will not be excluded in passing on that issue, but it will and should be considered in connection with all the other facts and circumstances in the case. If there were no other facts and circumstances in evidence, of course the accomplice testimony alone would not prove that fact. But we have no such case. The authorities cited by appellant announce no contrary rule. In those cases the question being passed upon was not whether the confession or accomplice testimony could be considered in connection with other facts and circumstances in passing on whether or not a crime had been committed, but was passing on the question as to the connection of the person on trial with the crime, and it was held that there must be other facts and circumstances in evidence, in addition to the accomplice testimony, tending to connect the person with guilty participation in the crime before a conviction is authorized. This rule of law we do not question, and there is nothing said or held in the original opinion, in our opinion, that would bear the construction that we held or intended to hold that a person could be convicted upon the uncorroborated testimony of an accomplice. But the testimony, independent of the testimony of the accomplice, does not in and of itself necessarily have to establish the guilt of the person on trial beyond a reasonable doubt, — if so, there would be no necessity nor place for the accomplice testimony. All that the testimony, in addition to the accomplice testimony, need to do is to, by and in of itself, tend to connect the defendant with the commission of the offense charged. This is the law in this State by virtue of article 801 of the Code of Criminal Procedure. In Vernon's Crim. Proc., section 15, under article 801, the authorities are collated and the rule stated to be:

"Corroborative evidence is sufficient if it tends to connect defendant with the crime. It need not be sufficient to convict nor need it corroborate in detail. Wilkerson v. State, 57 S.W. Rep., 956; Bruton v. State, 21 Tex. 337; Coleman v. State,44 Tex. 109; Gillian v. State, 3 Texas Crim. App., 132; Jones v. State, 7 Texas Crim. App., 457; Clanton v. State, 13 Texas Crim. App., 139; Crowell v. State, 24 Texas Crim. App., 404, 6 S.W. Rep., 318; Boyd v. State, 24 Texas Crim. App., 570, 6 S.W. Rep., 853, 5 Am. St. Rep., 908; Elizando v. State, 31 Tex. Crim. 237, 20 S.W. Rep., 560; Warren v. State, 67 Tex. Crim. 273, 149 S.W. Rep., 130; Holmes v. State, 70 Tex. Crim. 423, 157 S.W. Rep., 487; Gillespie v. State, 73 Texas Crim. App., 585, 166 S.W. Rep., 135; Savage v. State, 75 Tex. Crim. 213, 170 S.W. Rep., 730; Cooper v. State, 77 Tex. Crim. 209, 177 S.W. Rep., 975.

"The corroborating evidence to be sufficient must, of itself, and without the aid of the accomplice testimony, tend in some degree to connect the defendant with the commission of the offense for which he is on trial, but it need not be sufficient of itself to establish his guilt. It must tend to connect the defendant with the offense committed. It must be as to a material matter. It must tend directly and immediately, not merely remotely, to connect the defendant with the commission of the offense. Corroboration as to immaterial facts, having no tendency to connect the defendant with the commission of the offense, is not sufficient. The corroboration must be as to a criminative fact or facts. But it need not be corroborative of any particular statement made by the accomplice. The corroboration is not sufficient if it merely shows the commission of the offense by some person; it must go further, and tend to connect the defendant with its commission. The accomplice testimony need not be corroborated circumstantially and in detail, and if corroborated in material matters, it is unimportant that it was also corroborated in immaterial matters, as it is permissible to strengthen such testimony by proof of connected incidents tending to show its reasonableness and consistency. Dill v. State, 1 Texas Crim. App., 278; Nourse v. State, 2 Texas Crim. App., 304; Davis v. State, id., 588; Jones v. State, 3 Texas Crim. App., 575; Hoyle v. State, 4 Texas Crim. App., 239; Jones v. State, id., 529; Jackson v. State, id., 292; Tooney v. State, 5 Texas Crim. App., 163; Myers v. State, 7 Texas Crim. App., 640; Simms v. State, 8 Texas Crim. App., 230; Roach v. State, id., 478; Bruton v. State, 21 Tex. 337; Watson v. State, 9 Texas Crim. App., 237; Weldon v. State, 10 Texas Crim. App., 400; Jernigan v. State, id., 546; Harper v. State, 11 Texas Crim. App., 1; Cohea v. State, id., 622; Powell v. State, 15 Texas Crim. App., 441; Dunn v. State, id., 560; Zollicoffer v. State, 16 Texas Crim. App., 312; Phillips v. State, 17 Texas Crim. App., 169; Harrison v. State, id., 442; Tisdale v. State, id., 444; Blakely v. State, 24 Texas Crim. App., 616; 7 S.W. Rep., 233, 5 Am. St. Rep., 912."

With this well established statutory rule before us, let us consider what the testimony in this case tends to show, independent of the testimony of Mrs. Ward. The death of Ward is shown beyond question. Appellant himself takes the stand and testifies to adulterous relations between himself and Mrs. Ward; he testifies that Ward caught him and Mrs. Ward in a compromising position at night; he testifies that Ward then moved his bed into the same room with Mrs. Ward, and that he could not go there at night and have carnal intercourse with Mrs. Ward as he had theretofore been doing. A letter is found under the carpet in the dead man's house. Appellant admits he wrote this letter to Mrs. Ward subsequent to the time deceased had caught him and Mrs. Ward in a compromising position. In this letter he says, "I do wish I could be with you tonight. I would try to make you enjoy yourself the best I could. Dear, if you make up your mind and do what we were talking about I could be with you a whole lots of times. . . . Sweetheart, I wish I could see you when I want to and be with you, so I would not have to write; that is too cold and far off for me. Honey, do you want to be tied up like this all the time or not? Dear one, I know you don't. Honey, if you was mine I could be with you all the time and feel good. You know what we are doing is dangerous to all of us, so you decide and make up your mind what to do. I do not like to punish by having to stay away from you for that is the worst punishment I have, but, dear,it is not going to be that way all the time," etc. In the light of appellant's own testimony, that after deceased had caught him, he moved his bed into his wife's room so that he, appellant, could no longer go there at night and have intercourse with his wife, what are the natural and only deductions to be drawn from this letter admitted by appellant to have been written by him? "It is not going to be this way all the time." How was the condition to be remedied except by the removal of Mr. Ward, and after this letter was written he was "removed" by a pistol shot in the head in the dead hours of night. Does not this letter have a tendency to connect appellant with the removal of Mr. Ward, so that he could renew his amorous relations in the night-time, when appellant's own wife would know nothing about his conduct?

Then, after Ward's death, when Mrs. Ward goes with the body to Detroit, he admits he clipped out of the newspapers the comments on the death, wherein it is termed a suicide, based on what Mrs. Ward told the night of the death, and sends them to Mrs. Ward, writing at the same time, "All is well at this time." When the letter is found, which would lead anyone to believe that the writer of the letter had something to do with the death of Mr. Ward, we find appellant going to Temple, and telling Miss Mayse that Mr. Ward, Sr., was charging her sister with the murder of his son. Why does he of all men fly to the rescue of Mrs. Ward and champion her innocence? There is no testimony that the dead man owned a pistol of the character and kind that inflicted the fatal wound, while the testimony of Milton Norton and Cozier Walker on direct examination would authorize a jury to find that it was appellant's pistol found clasped loosely in the deceased's hand. These are facts and circumstances in evidence independent of the testimony of the accomplice, Mrs. Ward, and can we say or hold that they have no tendency to connect appellant with the death of Mr. Ward? If you can not so say and hold, then the testimony of the accomplice, Mrs. Ward, is corroborated in material matters, tending directly and immediately to connect the defendant with the commission of the offense, which testimony is independent of and in addition to her testimony, coming from other and different sources.

There are other matters presented in the lengthy motion for a rehearing, but they were all disposed of in the original opinion, and we do not deem it necessary to write again on them, but the above questions were summarized by appellant and pressed by him, and are the questions seemingly relied on, and out of deference to the earnestness with which they are pressed by appellant's able counsel, we have written at length on those questions, but after a renewed study of the record we are most thoroughly convinced that no error is presented which would justify a reversal of the case, and the motion for a rehearing is overruled.

Overruled.