OPINION
ONION, Presiding Judge.
The appeal is taken from a murder conviction wherein the punishment was assessed at 60 years.
At the outset, the appellant complains of the court’s failure to grant his special requested charge on the law of circumstantial evidence.
The alleged offense occurred at the Northline Motor Hotel at 5619 Airline Drive in Houston between 11 and 12 p. m. on May 7, 1969. Nancy Marie Bell testified she and her husband, the deceased, Willie Nash Bell, had managed the hotel for about 10 months. She related that at the time in question she had retired for the night and her husband was seated in the living area next to the office when she heard “a kicking” at the front door and she later heard a noise and then heard her husband holler, “Help.” She got out of bed and obtained a .22 caliber pistol and entered the living room. She heard a noise in the office which could have been shots, then the door to the office opened and the appellant entered the living room armed with a pistol and carrying her hus[56]*56band or holding him up.1 Her husband appeared to be unconscious “or maybe even dead.” His “head was hanging down and so were his arms.” Another man, an elderly one, was behind the appellant and he was also armed. Both men began shooting. Mrs. Bell returned the fire, shooting at the appellant who was holding her husband. Her husband was dropped to the floor and the two men fled from the building. She called the telephone operator and asked for help. The police and an ambulance arrived and she was taken to a hospital for treatment of the three wounds she received.
She further testified that she did not see anyone shoot her husband.
Dr. Joseph Jachimczyk, a medical examiner, testified that he performed the autopsy on the body of the deceased. He related a .22 caliber bullet entered the neck and moved upward, striking the lower jawbone, and lodged in the mouth of the deceased. This wound, he explained, would not ordinarily have proven fatal. He discovered another .22 caliber bullet entered the left chest two inches below the left armpit and penetrated the left lung, the root of the aorta, and the right lung. It was this wound, he revealed, that was the fatal wound. He further testified that “neither was a contact wound . . . From the appearance, it would indicate the weapon from which the bullets came was twenty inches or further away.”
Officer Tovar of the Houston Police Department, acting in response to a police broadcast, stopped a Volkswagen automobile driven by Clifford Glenn Fountain about 1 a. m. on May 8, 1969. The appellant, Jerry Farris, was in the front passenger seat and his father, Iwana Farris, was seated in the rear seat. The officers found a .22 caliber pistol (State’s Exhibit No. 10) between the two front seats and found a .38 caliber pistol in the rear of the car; a box of .22 caliber ammunition was found on the appellant and two .38 caliber shells were found in Iwana Farris’ pocket. Iwana Farris whs shown to be suffering from a bullet wound in the back.
Randy Sillivan, a ballistics expert, testified that the bullet found in the deceased’s mouth could not have been fired by State’s Exhibit No. 10, the weapon found near the appellant’s position in the car when he was arrested. He related he could not definitely make an identification of which gun had fired the other bullet found in the deceased’s body, but that he was able to determine that it had not been fired from State’s Exhibit No. 5, the pistol used by Mrs. Bell.
Testifying for the defense, Iwana Farris testified that on the night in question he and the appellant went to the hotel office, asked if there was a vacancy and then if Alton Daniels lived there; that the deceased told “me to get out, you son-of-a-bitch and stay out. I don’t want you or him either one here.” After some “cussing,” the witness related he began scuffling with the deceased and that a lady opened a door and shot him (the witness). He admitted that he struck the deceased in the head with a pistol and may have shot him, but claimed, if he did, he was using a .22 caliber pistol at the time and that his son, the appellant, had the .38 caliber pistol and they later exchanged weapons in the car prior to their arrest. He related that the appellant never had altercation with Bell; did not scuffle with him or have him around the neck, and that he alone had struggled with the deceased. He acknowledged that at the time of the alleged offense he was on parole, which had since been revoked, and that he had pleaded guilty to the charge of murdering Bell and had been assessed a punishment of 65 years.
[57]*57In support of his claim that he was entitled to the requested charge on the law of, circumstantial evidence, appellant calls attention to the fact that Mrs. Bell testified that she did not see anyone shoot her husband, that the bullet lodged in his mouth came from her gun, and that the State was not able to show that the other bullet found in the deceased’s body came from the .22 caliber pistol found in the car at the time of his arrest.
On the other hand, the State contends the testimony of Mrs. Bell and the arresting officer and the doctrine of close juxtaposition makes a charge on circumstantial evidence unnecessary. The State relies upon Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971); Smith v. State, 475 S.W.2d 238 (Tex.Cr.App.1972) ; Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1970); Wheat v. State, 434 S.W.2d 691 (Tex.Cr.App.1968); De La O v. State, 373 S.W.2d 501 (Tex.Cr. App.1964), and Barker v. State, 168 Tex.Cr.R. 513, 329 S.W.2d 889 (1959). See also Galvan v. State, 461 S.W.2d 396 (Tex.Cr.App.1971); Oltiveros v. State, 474 S.W.2d 221 (Tex.Cr.App.1971); Roberts v. State, 489 S.W.2d 893 (Tex.Cr.App.1973).
The record clearly shows Mrs. Bell heard noises which could have been shots after her husband had gone into, the hotel office. When the appellant entered the living room area where she was, he was carrying her husband who was limp, unconscious or already dead. There was an exchange of gunfire between Mrs. Bell and the appellant and his father. At no time did Mrs. Bell see anyone shoot her husband who was dropped to the floor when the appellant fled. Neither wound was a contact wound. One of the bullets in the deceased’s body came from Mrs. Bell’s pistol. It was not possible to identify the weapon from which the fatal bullet was fired.2
The indictment charged the appellant killed the deceased with malice aforethought “by shooting him with a gun.” This was the main fact to be proved.
“. . . If the main fact in a case is to be proved as a matter of inference from other facts in evidence, the case rests wholly in a legal sense on circumstantial evidence.
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OPINION
ONION, Presiding Judge.
The appeal is taken from a murder conviction wherein the punishment was assessed at 60 years.
At the outset, the appellant complains of the court’s failure to grant his special requested charge on the law of circumstantial evidence.
The alleged offense occurred at the Northline Motor Hotel at 5619 Airline Drive in Houston between 11 and 12 p. m. on May 7, 1969. Nancy Marie Bell testified she and her husband, the deceased, Willie Nash Bell, had managed the hotel for about 10 months. She related that at the time in question she had retired for the night and her husband was seated in the living area next to the office when she heard “a kicking” at the front door and she later heard a noise and then heard her husband holler, “Help.” She got out of bed and obtained a .22 caliber pistol and entered the living room. She heard a noise in the office which could have been shots, then the door to the office opened and the appellant entered the living room armed with a pistol and carrying her hus[56]*56band or holding him up.1 Her husband appeared to be unconscious “or maybe even dead.” His “head was hanging down and so were his arms.” Another man, an elderly one, was behind the appellant and he was also armed. Both men began shooting. Mrs. Bell returned the fire, shooting at the appellant who was holding her husband. Her husband was dropped to the floor and the two men fled from the building. She called the telephone operator and asked for help. The police and an ambulance arrived and she was taken to a hospital for treatment of the three wounds she received.
She further testified that she did not see anyone shoot her husband.
Dr. Joseph Jachimczyk, a medical examiner, testified that he performed the autopsy on the body of the deceased. He related a .22 caliber bullet entered the neck and moved upward, striking the lower jawbone, and lodged in the mouth of the deceased. This wound, he explained, would not ordinarily have proven fatal. He discovered another .22 caliber bullet entered the left chest two inches below the left armpit and penetrated the left lung, the root of the aorta, and the right lung. It was this wound, he revealed, that was the fatal wound. He further testified that “neither was a contact wound . . . From the appearance, it would indicate the weapon from which the bullets came was twenty inches or further away.”
Officer Tovar of the Houston Police Department, acting in response to a police broadcast, stopped a Volkswagen automobile driven by Clifford Glenn Fountain about 1 a. m. on May 8, 1969. The appellant, Jerry Farris, was in the front passenger seat and his father, Iwana Farris, was seated in the rear seat. The officers found a .22 caliber pistol (State’s Exhibit No. 10) between the two front seats and found a .38 caliber pistol in the rear of the car; a box of .22 caliber ammunition was found on the appellant and two .38 caliber shells were found in Iwana Farris’ pocket. Iwana Farris whs shown to be suffering from a bullet wound in the back.
Randy Sillivan, a ballistics expert, testified that the bullet found in the deceased’s mouth could not have been fired by State’s Exhibit No. 10, the weapon found near the appellant’s position in the car when he was arrested. He related he could not definitely make an identification of which gun had fired the other bullet found in the deceased’s body, but that he was able to determine that it had not been fired from State’s Exhibit No. 5, the pistol used by Mrs. Bell.
Testifying for the defense, Iwana Farris testified that on the night in question he and the appellant went to the hotel office, asked if there was a vacancy and then if Alton Daniels lived there; that the deceased told “me to get out, you son-of-a-bitch and stay out. I don’t want you or him either one here.” After some “cussing,” the witness related he began scuffling with the deceased and that a lady opened a door and shot him (the witness). He admitted that he struck the deceased in the head with a pistol and may have shot him, but claimed, if he did, he was using a .22 caliber pistol at the time and that his son, the appellant, had the .38 caliber pistol and they later exchanged weapons in the car prior to their arrest. He related that the appellant never had altercation with Bell; did not scuffle with him or have him around the neck, and that he alone had struggled with the deceased. He acknowledged that at the time of the alleged offense he was on parole, which had since been revoked, and that he had pleaded guilty to the charge of murdering Bell and had been assessed a punishment of 65 years.
[57]*57In support of his claim that he was entitled to the requested charge on the law of, circumstantial evidence, appellant calls attention to the fact that Mrs. Bell testified that she did not see anyone shoot her husband, that the bullet lodged in his mouth came from her gun, and that the State was not able to show that the other bullet found in the deceased’s body came from the .22 caliber pistol found in the car at the time of his arrest.
On the other hand, the State contends the testimony of Mrs. Bell and the arresting officer and the doctrine of close juxtaposition makes a charge on circumstantial evidence unnecessary. The State relies upon Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971); Smith v. State, 475 S.W.2d 238 (Tex.Cr.App.1972) ; Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1970); Wheat v. State, 434 S.W.2d 691 (Tex.Cr.App.1968); De La O v. State, 373 S.W.2d 501 (Tex.Cr. App.1964), and Barker v. State, 168 Tex.Cr.R. 513, 329 S.W.2d 889 (1959). See also Galvan v. State, 461 S.W.2d 396 (Tex.Cr.App.1971); Oltiveros v. State, 474 S.W.2d 221 (Tex.Cr.App.1971); Roberts v. State, 489 S.W.2d 893 (Tex.Cr.App.1973).
The record clearly shows Mrs. Bell heard noises which could have been shots after her husband had gone into, the hotel office. When the appellant entered the living room area where she was, he was carrying her husband who was limp, unconscious or already dead. There was an exchange of gunfire between Mrs. Bell and the appellant and his father. At no time did Mrs. Bell see anyone shoot her husband who was dropped to the floor when the appellant fled. Neither wound was a contact wound. One of the bullets in the deceased’s body came from Mrs. Bell’s pistol. It was not possible to identify the weapon from which the fatal bullet was fired.2
The indictment charged the appellant killed the deceased with malice aforethought “by shooting him with a gun.” This was the main fact to be proved.
“. . . If the main fact in a case is to be proved as a matter of inference from other facts in evidence, the case rests wholly in a legal sense on circumstantial evidence. The fact that circumstances may strongly point to a person accused of a crime does not relieve the court of the duty of charging the law of circumstantial evidence in a case where the question of guilt is an inference or presumption deducible from circumstances in evidence. . . .”31 Tex.Jur.2d Instructions § 122, p. 680-681.
See also Haney v. State, 438 S.W.2d 580 (Tex.Cr.App.1969), and cases there cited; Blankenship v. State, 481 S.W.2d 147 (Tex.Cr.App.1972).
In Crawford v. State, 128 Tex.Cr.R. 272, 82 S.W.2d 957 (1935), this court held that even though the State’s evidence led to the “almost irresistible conclusion” that the defendant was guilty of the burglary charged, and “however strong the circumstances may be,” if the case is based on “inference and reasoning therefrom,” the court must charge on circumstantial evidence.
[58]*58All of the evidence adduced was direct evidence as to the facts deposed to but indirectly as to the factum probandum of the alleged offense.
No one testified that the appellant shot the deceased.
Just when the fatal bullet was fired is not shown by the evidence. Mrs. Bell expressly testified that she did not see anyone shoot her husband. One of the bullets in the deceased’s body came from her pistol, and the State was not able to show that the other bullet was fired from either pistol found in the car when appellant was arrested.
We conclude that the court clearly erred in failing to respond to the timely presented special requested charge on circumstantial evidence.
For the reason stated, the cause is reversed and remanded.