HENDERSON, Judge.
Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and he appeals.
The facts connected with the case, briefly stated, are these: Appellant’s mother lived in Hays County, some twelve or fourteen miles from Kyle, in a brushy, mountainous region of said county, west of Kyle. She had a little farm and pasture; and with her lived her sons, Leonard and Clay, and a daughter, and at times appellant, another son, stopped with her, but generally he was away from home, in the cattle business. Her nearest neighbor lived about one mile distant. There were several others, who lived two to three miles away. The deceased, Charles Lindeman, prior to about the 1st of July, had been living in Arizona, and was engaged in the cattle business. He was a German, a single man, 35 or 40 years old, and had no relatives living in that country. Defendant had been absent from Texas for some year or more, working in the cattle business, in Arizona, in the same vicinity with Lindeman. Some time in June, 1897, Lindeman sold out his cattle interest in Arizona for some $2500, and he and appellant came to Hays County, and immediately on their arrival at Kyle went to the home of appellant’s mother.
On the 26th of June they returned to Kyle together. Lindeman deposited in the Kyle Bank $2100. Appellant, on the 2d of July, deposited in the same hank $550. The parties made a written contract to engage in the cattle business; Lindeman agreeing to advance so much money to appellant, and to take it out of the cattle when sold. They bought cattle together in that and an adjoining county from time to time, checking out of the bank for the payment of the same. The cattle were driven to the pasture of Mrs. Gay. They brought a trunk, evidently belonging to Lindeman, and perhaps some other baggage, from Arizona. This was carried out to Mrs. Gay’s, and her home was their headquarters. On the 25th of August both parties came to Kyle together. Lindeman drew out $527.34, the balance due him. Appellant drew out $150 of his deposit, still leaving $303.25 in the bank. It was stated at the time that they .intended to carry this money to San Marcos for the purpose of depositing it in bank, as some apprehension was expressed as to the safety of the Kyle bank. At the same time they procured the written contract between themselves, concerning the cattle business, from Helman, with whom it had been deposited, ostensibly for the purpose of having the same recorded in the county clerk’s office at San Marcos. They did not, however, go to San Marcos. They were seen - returning together that evening to Mrs. Gay’s. Gay was. seen in the immediate neighborhood the next day, but no person is shown to have ■seen and identified Lindeman in that section after said afternoon. On Friday morning, the 28th of August, appellant was seen early in the morning, between daylight and sunrise, in Buda (a little station on the’ International & Great Forth era Railroad, a few miles north of Kyle, between that place and Austin,—about fifteen miles from Mrs. Gay’s, some three mile's further than Kyle). Appellant was riding one horse and leading another saddled horse, at the time, and was coming from below Buda, in the direction of a fiat, and stated that he had brought Lindeman to Buda the night before, for the purpose of taking the train; that he was too late for the night train, and they concluded to stop out in the woods, as it was not convenient to get lodging; and appellant left him early in the morning to take the train. Appellant is not shown to have definitely stated where Lindeman said he was going. To some he appears to have stated that he was going to buy cattle down where they had been; that he had gone north on the train. One witness testified to having seen defendant and another man, both riding horseback, passing through Buda late on the night before. Did not recognize the other man, but identified defendant. Appellant is also shown to have stated to one witness afterwards that Lindeman took the train at Kyle. The evidence tends to show that Lindeman did not take the train at Buda on that occasion. The State’s testimony shows that the train did not. stop there that morning. Appellant offered testimony, however, tending to show that it did stop at Buda. On the Sunday following, appellant drew a draft in favor of Samanago, who lived near him, between his mother’s and Kyle, for $303.25, the balance due him by the bank.
This appears to have been an accommodation loan. After the disappearance of Lindeman, appellant claimed the interest of Lindeman in the cattle purchased by them, stating that he had given $350 for the same. Lindeman left his trunk, some clothing, a pipe, saddle, and pony, at Mrs. Gay’s. The mysterious disappearance of Lindeman soon attracted attention in the neighborhood, and a reward was offered for his discovery. About the 4th of October following, the sheriff and a posse made search of the premises and pasture of Mrs. Gay, and about a thousand yards from her house, in the pasture, in a rather secluded spot they discovered some ashes, evidently where some human body had been burned, some of the witnesses say apparently about three or four weeks before. We quote from one witness in regard to this matter as follows: “About a quarter or half mile from the Gay house I found where there had been a fire. At the point where we found the fire, it was brushy and hilly. In some spots the undergrowth was thick. At the point where I found the fire there is a little ravine. I saw from the leaves that there had been a fire before I got down off of my horse. You could get into where the fire was upon your horse on the side I was, and on the other side you could ride close to it. I scratched around a little with a stick in the ashes, and found two or three bones and a button. * * * We found ashes, bones, teeth, buttons, and brads used on duck pants, and small pieces that looked like leather, and a lock of hair. The buttons were pants buttons. The evidence of fire upon the trees was about twenty feet high. The ashes covered a space about six feet long and four feet wide.’’ One witness says there was about the ashes charred wood,.and he saw the effect of the fire on a tree as high as forty feet. The leaves at the time had changed their color, some by fire and some from the turning of the season. All these articles were sifted from the ashes and preserved. As to the buttons, it was shown that five of them were large metal buttons, and five smaller buttons. The large buttons were unmarked, and the small ones marked “St. Louis Faultless.’’ The testimony of Helman, the State’s witness, showed that, about a month previous to the disappearance of Lindeman, he bought from him a pair of overalls. Said overalls had eight large and four small buttons. The large buttons were marked, and the small ones not. A few still smaller buttons were found, which appeared to be shirt buttons, and also some brads, but there was no testimony tending to identify these as the property of Lindeman. Pieces that looked like burned leather and also pieces that looked like cloth were found. A small bunch of hair was also found near the fire, and, in general appearance, this was stated to have resembled the hair of Lindeman. The teeth found were detached, no portion of the jawbone appearing, and were shown to be considerably charred, but identified as the teeth of some human being. Dr. A. J. Bell testified as follows in regard to the teeth and bones: “There are five of these teeth shown me, two of which are white and the other three are very dark. The teeth that are so black seems to extend through the whole tooth. I can not account for this
black, except the peculiar position occupied in the tire. I do not think they are artificial teeth. * * * This bone that I think is the bone of the big toe seems to be all there. Some of it seems to have been broken off, but the general shape is there. The big toe bone is a little over an inch in length, and is about one-quarter inch in diameter one way, and a little over one inch the other. The bone which I think is from the small toe shows, from the measurement, to' be about one-eighth inch in diameter one way and the other about one-sixteenth. All of these, together, are very small pieces of bone. All the bones and teeth, together, would not fill an ordinary glass tumbler. This little bunch of hair shown me has sixty or seventy strands. It is very fine, and a light brown color. I do not see any gray hairs among it.” Dr. Ed. Bell described some other bones in addition to those mentioned, and stated “that he thought the bone he then held in his hand was the first rib bone, but not the whole of it. This other looks like a little bone in the throat, called the ‘hyoid bone/ ” Dr Jordan corroborated said witnesses as to the bones and hair; that he also thought the small bone shown him was the hyoid bone, which supported the tongue. Dr. Hons stated that he thought the larger bone shown him was the bone of the big toe of a human being, and the smaller bone was a bone of the human finger. Another bone was the hyoid bone, to which the muscle of the tongue attaches. “There is no other bone in the human body like it, that I know of.” He stated that he was not able to tell whether the teeth shown him were human teeth or not. The two long black teeth looked like bicuspids, and the smaller white teeth incisors, from the lower jaw. And to the same effect is the testimony of Dr. Pertle. This was substantially all the testimony tending to identify the remains found in the fire. The State offered some testimony tending to show the previous financial condition of appellant, and that he was not able to have purchased the cattle, and that he not only claimed Lindeman’s cattle afterwards, but was shown to have had considerable money. The defendant, in rebuttal of this, offered testimony tending to show that appellant had enough money to have made the purchase. There was also testimony on the part of the State tending to show that Lindeman expected to remain in that community for several years. Defendant offered testimony tending to show that he was dissatisfied with the country and expected to leave. The State introduced one Fulgram, who lived in Arizona, in the same neighborhood of Lindeman, and he stated that he knew of Lindeman leaving said country, but he had not returned. This was substantially all the testimony in the case.
Appellant made a motion to quash the indictment on the ground that the grand jury which found the bill had previously been adjourned for the term, and that when it was reassembled it was not then impaneled and sworn according to law; and, furthermore, that when it was reassembled it was not composed of the same grand jurors which had been impaneled at the beginning of the court; that one Henry Miller’s name ' did not occur on the list, but that the name of Henry Wagner occurred
twice. It was shown, as to this, that the name of Henry Wagner occurred twice by mistake, and that Henry Miller’s name should have appeared in one place instead of the name of said Wagner. This sufficiently shows that it was the same identical grand jury which had been originally impaneled at the beginning of said term of court, and it was not necessary, when they were reassembled, to reimpanel them; that is, it was not necessary to go through the formality of testing them as to their qualifications, and reswear the members of said grand jury. Article 411 of the Code of Criminal Procedure of 1895 controls this matter, and does not apprehend, where the constituents of a grand jury reassembled are the same, that the court shall do more than set aside the order discharging the grand jury, and then order their reassembling. Of course, it would be different where the original grand jury does not attend, and other persons are summoned to fill out the original panel.
Appellant made a motion to quash the special venire of 100 men on two grounds: The first, on the ground that F. B. Lobenski, who was one and the same person, was drawn twice on said jury, so that in fact only ninety-nine jurors were drawn; and again, that the officer making ' his return stated, as to Northcott and R Martindale, that they were sick, and unable to come, and that W. O. Thompson was over age, and claimed his exemption, and C. W. Richards not found. He claims, as to these, that it was not the sheriff’s duty to judge of the inability of these men to attend court, because of sickness; that he should have served them, and, if they had any excuse to render, they should have made it to the court. As to C. W. Richards, that he merely returned that he was not found, without stating what diligence he had used in order to find him. We agree with the contention of counsel that it was the duty of the sheriff to have summoned these jurors, notwithstanding they were sick, and, as to Richards, the diligence should have been stated. As to the juror Lobenski, we are referred to the case of Hunter v. State, 34 Texas Criminal Reports, 599. That was not like the case at bar. In said case, ninety jurors were ordered to be drawn and summoned by the court, and the clerk only drew a list of sixty. This was a clear violation of the order of the court, and unauthorized. In this case, a simple mistake occurred as to one juror in drawing his name from the list twice. A mere -clerical mistake, such as this, will not vitiate the panel. While it was the duty of the sheriff, as aforesaid, to have summoned said jurors and shown the diligence as to said Eichards, yet in our opinion this failure, under the circumstances of this case, is not cause for reversal.
Nor, in our opinion, was there any material error in regard to the action of the court as to the juror Whisenant. The sheriff evidently made a mistake as to having summoned this juror; but certainly his absence should have been discovered by appellant when the list was first called, and he then should have asked an attachment for him. In the view we take of the case, it is not necessary to discuss the questions involved in the motion for continuance.
Thomas Fulgram was introduced by the State, over the appellant's objection, and permitted to state that he had known Lindeman for eight or ten years in Arizona; that Lindeman had never been charged with a criminal offense during said time, was well thought of, and was a good man. Defendant objected to this testimony, because same was irrelevant to any issue in the case; that, if said testimony was admissible at all as to the character of said Lindeman, only his general reputation could be shown, and not the individual opinion of the witness. We believe appellant's contention as to the opinion of said witness concerning Lindeman being a good man should have been excluded. There was nothing in the case to authorize the testimony as to the good character of said Lindeman, and, if same had been admissible at all, it could only have been proved by his general reputation. As to the first proposition, if there was any issue in the case raised by appellant that Lindeman may have fled, in order to escape arrest, in apprehension of some criminal process, then perhaps such testimony may have been admissible. But we do not recall any issue raised by the evidence of this character. The State itself showed that the sheriff informed appellant that he had process for Lindeman from Arizona, and that a reward had been offered for him; but this was shown to be a mere pretext on the part of the sheriff, acting as a detective, and this suggestion was refuted by defend.ant himself. Under the circumstances of this case, we believe it was only competent for the State to have shown by the witness Fulgram that Lindeman had not, up to the time he (witness) left Arizona, returned to that neighborhood, nor had he heard of him in that community, though he had made inquiries.
By this same witness, Fulgram, the State was permitted to prove, over the objections of appellant, that a certain pipe exhibited to him (and which pipe had been found at the residence of the defendant’s mother after the disappearance of the alleged deceased, Lindeman) was the property of the said Lindeman; and thereupon the State was permitted to prove by said witness, upon his original direct examination, that the said Lindeman had told him, while living in Arizona, that said pipe had been given to him by his (said Lindeman’s) brother, who was then deceased, and who had been dead quite a number of years. This testimony was objected to by appellant, on the ground that it was hearsay. Mr. Greenleaf (1 Greenleaf on Evidence, section 109) states the rule in regard to declarations as to title, but this appears to concern real estate. In the conclusion, however, of said section, he uses this language: “But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestae, leaving its effects to be governed by the other rules of evidence.” This would appear to be comprehensive enough to include anything one in possession would say in regard to his title, as to personal property as well as realty. And the note under this section refers to Reg. v. Abraham, 2 Car. & K., 550, in which the following
language is used: “Accordingly it has been held that a statement made by a person not suspected of theft, and before any search made, accounting for his possession of property which he is afterwards charged with having stolen, is admissible in his favor.” Here we have the declarations of Lindeman, the alleged deceased, in regard to how he came by a certain pipe in his possession, stating it was a present from his brother. Evidently the, purpose of this testimony was to show that Lindeman would not likely have left Hays County, in the mysterious manner attributed to him by appellant, without taking his pipe with him, as he appears from this testimony to have placed a premium upon it as a keepsake. Unquestonably this character of testimony, coming from original sources, would be competent, and it would be entirely competent to show the acts of Lindeman with reference to this pipe, showing the estimation he placed upon it. Concede the safer rule would be to show this by original testimony, and not by hearsay evidence, still we believe the rule would extend to and include verbal acts showing his estimation of the pipe, when these verbal acts, with reference to his title and possession, were made long anterior to the alleged homicide, so as to indicate an absence of fabrication.
"Concerning the testimony of the witness Fulgram as to his acquaintance with certain parties named by him as living in Hays County, and that he was acquainted prior to his removal, while we do not believe there was such attempt made to discredit him as would authorize the production of testimony of his reputation for truth and veracity, yet, under the circumstances of this case, we can see no reasonable objections to this character of evidence. There was some testimony adduced by appellant suggesting that he had registered at San Marcos from Seguin, while he was living in Arizona, and also that he had stated to one of defendant’s attorneys that he was an insurance agent. In rebuttal of this character of evidence, we think it was competent for the State to show, as was done, his prior residence at Seguin, and his acquaintance with parties there and in Hays County.
Furthermore, we do not believe that the objection urged by appellant to the testimony of Sheriff Jackman, as to the ruse he practiced on appellant to obtain testimony from him, in connection with the disappearance of Lindeman, was incompetent or improper. The objection urged by appellant to this testimony was that he was at the time under arrest, but the record does not bear out this contention. True, the sheriff states that he would not have let appellant go at that time, and he subsequently did arrest him, but at the time when this conversation occurred there was no suggestion of any arrest. Appellant moved about evidently as he pleased, and, while he accompanied the sheriff into the pasture, he appears to have gone of his own volition. After this, even, the sheriff laid down and went to sleep. If appellant had desired, he could have then gone where he pleased without the sheriff. It was some time after this before he was in fact arrested.
We do not believe it was competent to prove the statements of Lin
deman, made in the absence of the defendant, to the
effect
that he had loaned defendant $600 with which to buy cattle; but we believe it was competent to prove by witnesses that Lindeman made inquiries of them, while he was in Hays County, with reference to the purchase of land, as evidencing his intent to remain in that section.
The court in his charge instructed the jury with reference to homicide committed in .the perpetration, or attempted perpetration, of robbery, telling them that homicide so committed was murder in the first degree. Appellant objected to this, on the ground that the indictment-did not charge murder committed in robbery, or the attempted perpetration of. robbery, but merely murder upon express malice; and furthermore, there was no evidence in the case showing that the murder, if any, was committed in the perpetration of, or attempted perpetration of, robbery. The first proposition of appellant is not in accord with the rule established in this State. See Sharpe v. State, 17 Texas Crim. App.,
486,
followed
in
Isaacs v. State, 36 Texas Crim. Rep., 505. In appellant’s last proposition, he contends that, where such a charge is allowable at all, it must be strictly under our statute defining a technical robbery; that it does not include the mere purpose to claim property after the homicide that may have belonged to the deceased. We agree to this contention, and are inclined to the view that the testimony here did not authorize the charge. We have no evidence in the record with regard to the mode or manner of the homicide, or what was done at that particular time; nor do the circumstances show that appellant was afterwards found with any money of deceased that was in his possession previous to his disappearance. There is some testimony tending to show that he may have had more money after the disappearance of Lindeman than he had before; but in their business arrangements it is entirely consistent with their mode of dealing that the appellant may have had money of Lindeman under his control or possession at the time of the homicide either to purchase cattle, to pay for cattle, or he may have borrowed some from Lindeman. That is, we fail to find in the testi- .
many
circumstances tending to show that, if it be true he killed deceased, Lindeman, he took from his person or possession any money. If he had any money that may have belonged to deceased in his possession at the time, and he killed him in order to afterwards assert a claim to this money, we do not understand that to be robbery; that is, a taking from the person or possession property by means of robbery. As to the testimony of the State, which tends to show that appellant laid claim to the interest of Lindeman in the herd of cattle after his disappearance, if he killed him in order to assert title to tírese cattle, that would not constitute robbery. The cattle appear to have been in the possession of appellant, or, at least, in the joint possession of himself and Lindeman; and it is not pretended that he took said cattle from the person or possession of said Lindeman by means of robbery, but merely that, having killed him, he then laid claim to cattle which were already in his possession. So we are of the opinion that the evidence
did not raise the issue of robbery, or of a killing in the perpetration, or attempted perpetration, of robbery, in this case.
The most important question presented for our consideration is that of the corpus delicti; and it is raised by an assignment of error on the charge of the court, and the refusal of the court to give the requested -charge, on this subject, and also because it is insisted that the evidence fails to show the corpus delicti. Aside from the court’s instruction, which appears to assume that, if Lindeman was killed, he was unlawfully killed, we do not believe that the court’s charge was either explicit enough or full enough. On the other hand, we do not believe the requested charge on this subject states the correct rule. Appellant asked the court to instruct the jury “that they must find beyond a reasonable doubt that the portions of bone, hair, etc., found, had been identified by the evidence beyond a reasonable doubt as a portion of Lindeman’s remains, independent of any evidence of Lindeman’s disappearance, and of any evidence of statements by Gay, or the possession by Gay of money or property claimed by the State to be Lindeman’s property. In other words, the death of Lindeman must be proved by the identification of the portions of the bones claimed by the State to be bones of Lindeman, as such in fact, independent of the other evidence in the case, and, without such identification, the defendant could not be convicted, even if he had made an extrajudicial confession to the effect that he had killed Lindeman.” This proposition excludes from the consideration of the jury all other evidence whatever tending to identify pieces of bones, hair, etc., found as a part of the remains of Lindeman, save and except such identification as was given by witnesses tending to prove that they recognized said fragments as portions of the remains of deceased. Under this rule in many instances, although the proof might show, in connection with the portions of the remains found and other circumstances of the case, to an absolute certainty and beyond any reasonable doubt, that they were identified as the remains of the deceased, yet a conviction could never follow, because no witness, speaking from the remains alone, would be able to identify them. We concede that the expressions in some of the opinions and the tendency of the decisions in Lightfoot’s Case, 20 Texas Criminal Appeals, 77, and Puryear’s Case, 28 Texas Criminal Appeals, 73, appear to support the contention of appellant in this respect. But we believe the correct rule is laid down by Judge Gould in Wilson v. State, 41 Texas, 321, and in Kugadt v. State, 38 Texas Criminal Reports, 681. We quote from the latter case as follows: “How, with reference to the corpus delicti, and recurring to the summary of the facts heretofore stated, we would observe that the rule of law is well settled that, before a conviction can be maintained in any criminal case, the corpus delicti must be established. In a case of culpable homicide, Mr. Wharton says: It is essential for a conviction for any degree of culpable homicide—first, the deceased should be shown to have been killed; and, second, this killing should have been proved to have been criminally caused. Unless the corpus delicti in both these respects is proved, a con
fession is not, by itself, enough to sustain a conviction.’ Whart. Hom., sec. 641. See also Hunter v. State, 34 Texas Crim. Rep., 599, and authorities there cited. We would further observe, in this connection, that, before a person can be convicted of felonious homicide, the death of-the deceased must be shown to have been caused by the act or agency of such party; and in this State it is enacted by -statute that 'no person shall be convicted of any grade of homicide, unless the body of the deceased or portions of it are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.’ See Penal Code, 1895, art 654. Now, it will be noted that, while the statute requires that the body of the deceased or portions thereof which are found, must be sufficiently identified to establish the fact of the death of the person alleged to have been killed, yet there is no attempt to indicate the character of testimony by which the identity of the person is to be established. The statute says that the remains must be sufficiently identified; that is, we take it, the statute requires that the proof be of a legal character. Nowhere is it said that the testimony must be positive. If it be circumstantial, that is all that is necessary, if it sufficiently identifies the remains or the portions thereof found as those of the deceased. See Tittle v. State, 35 Texas, 97; Wilson v. State, 41 Texas, 320, 43 Texas, 472; Brown v. State, 1 Texas Crim. App., 154; Jackson v. State, 29 Texas Crim. App., 458; State v. Davidson, 30 Vt., 377; McCulloch v. State, 48 Ind., 109; State v. Williams, 52 N. C., 446, reported in 78 Am. Dec., 248, and note 2, at page 253; Campbell v. People (Ill. Sup.), 42 N. E. Rep., 123; State v. Martin (S. C.), 25 S. E. Rep., 113; Webster v. Com., 5 Cush., 386; 1 Bish. Cr. Proc., sec. 1057 et seq.”
In our opinion the court should have fully instructed the jury in accordance with the above, as this was the crucial point in the case. Inasmuch as this case must be remanded for a new trial, we will not discuss the evidence on this question. For the errors discussed, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, absent.