Gray v. State

Appellant was convicted in the district court of Kaufman county for the offense of manslaughter and his punishment assessed at confinement in the penitentiary for a term of four years. Deceased was the wife of appellant.

The testimony shows that appellant went to a house at night where his wife and step-children were staying and on entering the room where his wife was found her on the bed with another negro, called in the record "Mr. Whang". "Whang" immediately opened fire and the deceased ran, and appellant grabbed the pistol out of "Mr. Whang's" hands, and upon "Mr. Whang's" running appellant began shooting in the direction he and deceased had gone. Shortly after the shooting had ceased, appellant made the statement to his step-son that he got one of them, but he didn't know which one it was. The next day the deceased was found a short distance from the scene of the shooting, in the corn field. The testimony further shows that the deceased was shot in the back and that her death was caused by this wound.

There are but two bills of exceptions in the record. Bill of exception No. 1 is in question and answer form, and, under Art. 846, Code of Criminal Procedure, we can not consider same. Dunlap v. State, recently decided by this court and not yet reported. We have examined the testimony contained in said bill of exception No. 1, however, and are of the opinion that it shows no error, as it seems that the very question of which complaint is made in said bill was answered favorably to the defendant, and at least was not of sufficient importance to require a reversal, could the bill be considered.

Bill of exception No. 2 complains of the action of the court in refusing to charge on circumstantial evidence. It has often been held by this court that it is only when the inculpatory evidence is wholly circumstantial that an instruction as to that character of evidence is demanded; and it has also been the universal holding that proof that defendant admitted or confessed having killed the deceased is direct and not circumstantial evidence of the main inculpatory fact, and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. Heard v. State, 24 Tex.Crim. App. 111; Smith v. State, 28 App. 315; Guerrero v. State, 171 S.W. 733. It has also been held that if the facts proven are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. Dobbs v. State, 51 Tex. C. R. 629; Keith v. State, 50 Tex. C. R. 63; Kidwell v. State, 35 Tex. C. R. 264.

Following the rules above announced, we conclude that there was no error in the court's action in failing to charge on circumstantial evidence in this case.

This disposes of appellant's assignments; and, finding no error in the record, it is our opinion that the case should in all things be affirmed.

Affirmed.

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.