Foster v. State

Insistence is renewed that the admission in evidence of the clothing worn by deceased at the time of her death should have been held to have been reversible error. The bill of exception complaining of this matter gives us no information as to the condition of the clothing. There is no certificate that they were blood-stained or in any condition which would likely excite the feelings of the jury. In his motion appellant refers us to Christian v. State, 46 Tex.Crim. Rep., 79 S.W. 562; Melton v. State, 47 Tex.Crim. Rep., 83 S.W. 822, and especially to Williams v. State, 61 Tex.Crim. Rep.,136 S.W. 771. In none of these cases was a reversal based solely upon the introduction in evidence of the clothing of deceased. The matter was not even discussed in the original opinion in Williams' case, but reversal was predicated on other grounds. Only upon motion requesting the court to pass upon other bills of exception was the question mentioned. The point involved was recently discussed in Trigg v. State, 99 Tex.Crim. Rep.,269 S.W. 782, in the opinions both on original submission and on rehearing. We believe the views there expressed are correct. The bill complaining of the introduction of the clothing in the present instance, we think, presents no error demanding reversal, and especially so where the bill is silent as to their condition.

Appellant presents in connection with his motion a most forceful argument in support of his contention that the evidence did not authorize the verdict and that this court should not permit the judgment to stand. Impressed with the earnestness of counsel in such contention in oral argument we have again very carefully reviewed the statement of facts. As recognized by counsel, it is extremely difficult for this court to get the exact and relative positions of parties from the record or to grasp the significance of the movements and statements of witnesses which might be perfectly clear to the jury before whom the case is being tried from seeing the witnesses and comprehending their designation of locations, etc., which necessarily mean little when read by us. For this reason the province of settling questions of fact has been very properly and wisely delegated to the jury and unless this court can ascertain from the record that there is no evidence upon which the verdict might be predicated it should not be disturbed. Our conclusion from a further and careful scrutiny of the facts is that this court would be unauthorized to say that the jury was without evidence to support the conclusion reflected by their verdict.

So believing, and thinking the other questions presented to have been properly decided, it is our duty to overrule the motion for rehearing, and it is so ordered.

Overruled.