HENDERSON, Judge.—Appellant
was indicted for the murder of Martha Skipwith. The homicide occurred in Rains County, and the venue of the case was transferred to Hopkins County. The jury convicted appellant of murder in the second degree, assessing the punishment at five years’ imprisonment in the penitentiary. Hence this appeal. It appears from the record that on the night of September 20th, R. M. Skipwith and his mother, Martha Skipwith, were sitting on the gallery in front of the house of R. M. Skipwith. The house fronted north. The street ran by the east end of the house. Some one who stood about forty-one feet to the east from where Martha Skipwith, deceased, was sitting in a chair, with a double-barreled shotgun shot and killed the deceased. R. M. Skipwith was sitting about three or four feet from his mother when she was shot. The State’s theory is that the assassin, when he fired and killed Mrs. Skipwith, intended to kill her son, R. M. Skipwith. Whether he did so intend, or not, this was a fiendish act, and a cold-blooded assassination; and it is incomprehensible to us how an honest jury, if they believed appellant guilty beyond a reasonable doubt, could have fixed the punishment at five years in the penitentiary. To support the theory of the State that the appellant did the shooting, the State relied upon tracks made by the person who fired the gun; that is, the tracks found where the person who shot was standing at the time the shots were fired, and the correspondence between those tracks and the shoes of the defendant. In further support of the theory that the appellant was the assassin, the State relied upon threats made by the appellant some months before the homicide. There is not a criminative fact in the record beyond these mentioned. There was nothing peculiar about the tracks,-—the heels of the shoes not being run down, no patches on the soles, and no tacks. The only proof offered as to a correspondence of the tracks found on the ground with those of the appellant was of the most general character. The shoes were not placed in the tracks, nor was anything like an accurate comparison made between the tracks and the shoes. On this subject Mr. Bum" 11, in his valuable work on Circumstantial Evidence, lays down the following: “Sometimes such impressions are used to establish the fact of presence more directly, by means of the exact correspondence observed to exist between them and the feet or shoes of the accused, proved (which is always essential) by actual comparison, as by bringing the two objects into juxtaposition, and placing the shoe upon the impression. Where no pe
■culiar marks are observed, but the correspondence thus proved is merely in point of superficial shape, outline, and dimensions, and those of the ordinary character, it may serve to confirm a conclusion established by independent evidence, but cannot be, in itself, safely relied on, on account of the general resemblance known to exist among the feet and shoes of persons of the same age and sex. But, where certain peculiarities are observed, which at once distinguish the impression from all others, an exact correspondence, verified by the test of comparison, becomes of the highest importance; and the value of such coincidences is obviously increased with the number of the peculiar marks' observed.” See, Burrill, Ciro. Ev., p. 267. As we have said above, there was no peculiarity about these shoes at all, in any respect, except that they were about a No. 3 in size. As stated before, aside from the evidence regarding these tracks, the only other criminative fact against the appellant was testimony of some previous ill will existing between him and R. M. Skip-with. The testimony regarding this ill will was that it was not of an acute character, and antedated the homicide a considerable length of time, with ample opportunities to have executed the threat if he had intended to do so. And, besides, it was shown that, since their previous altercation, they had met and conversed with each other, and were, apparently, on friendly terms. This same character of testimony as to ill will was shown to have existed against said R. M. Skip with by several Other persons in that community. Now, upon these criminative circumstances alone, to-wit: ill will and the vague testimony regarding a comparison of the tracks found and the shoes worn by defendant, the conviction of the defendant was procured. In our opinion, the most that can be said of this evidence is, that it raises a suspicion against appellant that he might have been the perpetrator of the homicide. Evidence in this case of the same character creates a suspicion against other persons in that community. The evidence, as stated, shows that other persons besides the accused entertained ill will against R. M. Skip with, and we can assume that, in a community of that size, a great number of persons wore No. 3 shoes. In addition, the record shows that a No. 12 guage gun may have been used in the homicide, from the size of the wad found on the ground. The record also shows that a number of persons in that community owned No. 12 guage guns. As was said in the case of Tollett v. State, 44 Texas, 95: “To sustain a conviction, it should appear, not only that the offense as charged has been committed,-but there should also be proof tending to establish that the party charged was the person who committed it, or was a participant in its commission to a degree of certainty greater than a mere probability or strong suspicion. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him. It is the duty of the court to require that such legal and competent evidence shall be adduced on the trial, in order to sustain a verdict of guilty.” We are of opinion that there is not that legal and competent evidence pertinently identifying the defendant with this
murder. ■ There is no better rule than that the testimony relied upon for conviction must be legal testimony. We are, of opinion that illegal testimony was admitted in evidence against the appellant. Appellant proved that some person at night had thrown a brickbat at R. M. Skipwith. Over the objections of the appellant, the State proved, by J. W. Quarles, that Martin said (not in the presence of the defendant)that defendant threw the brickbat at R. M. Skipwith. This was, evidently, hearsay testimony of a very material character. It was not admissible, because appellant had proved that some one had thrown a brickbat. He had a right to make this proof, and the State had a right to prove that he was the man; but the State must prove it by competent testimony, and not by hearsay evidence. The matter pertaining to the special judge and the regular judge both participating in this trial will not arise upon another trial. As it is an important question, we hold that there was no error. See, State v. Womack, 17 Texas, 237; Edwards v. James, 13 Texas, 52; Coles v. Thompson (Tex. Civ. App.) 27 S. W. Rep., 46; Railway Company v. Crawford, (Tex. Civ. App.) 29 S. W. Rep., 958; 1 Thomp. Trials, § 213 et seq. The State introduced the witness, Proctor, and asked him if he had not inquired of Mrs. J. W. Cox for a shotgun, after the killing of Mrs. Skipwith. This he denied. He was then asked if he did not so swear before the grand jury, when they were investigating this, case, and if he did not further swear that she replied she did not know where it was. This he also denied.
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HENDERSON, Judge.—Appellant
was indicted for the murder of Martha Skipwith. The homicide occurred in Rains County, and the venue of the case was transferred to Hopkins County. The jury convicted appellant of murder in the second degree, assessing the punishment at five years’ imprisonment in the penitentiary. Hence this appeal. It appears from the record that on the night of September 20th, R. M. Skipwith and his mother, Martha Skipwith, were sitting on the gallery in front of the house of R. M. Skipwith. The house fronted north. The street ran by the east end of the house. Some one who stood about forty-one feet to the east from where Martha Skipwith, deceased, was sitting in a chair, with a double-barreled shotgun shot and killed the deceased. R. M. Skipwith was sitting about three or four feet from his mother when she was shot. The State’s theory is that the assassin, when he fired and killed Mrs. Skipwith, intended to kill her son, R. M. Skipwith. Whether he did so intend, or not, this was a fiendish act, and a cold-blooded assassination; and it is incomprehensible to us how an honest jury, if they believed appellant guilty beyond a reasonable doubt, could have fixed the punishment at five years in the penitentiary. To support the theory of the State that the appellant did the shooting, the State relied upon tracks made by the person who fired the gun; that is, the tracks found where the person who shot was standing at the time the shots were fired, and the correspondence between those tracks and the shoes of the defendant. In further support of the theory that the appellant was the assassin, the State relied upon threats made by the appellant some months before the homicide. There is not a criminative fact in the record beyond these mentioned. There was nothing peculiar about the tracks,-—the heels of the shoes not being run down, no patches on the soles, and no tacks. The only proof offered as to a correspondence of the tracks found on the ground with those of the appellant was of the most general character. The shoes were not placed in the tracks, nor was anything like an accurate comparison made between the tracks and the shoes. On this subject Mr. Bum" 11, in his valuable work on Circumstantial Evidence, lays down the following: “Sometimes such impressions are used to establish the fact of presence more directly, by means of the exact correspondence observed to exist between them and the feet or shoes of the accused, proved (which is always essential) by actual comparison, as by bringing the two objects into juxtaposition, and placing the shoe upon the impression. Where no pe
■culiar marks are observed, but the correspondence thus proved is merely in point of superficial shape, outline, and dimensions, and those of the ordinary character, it may serve to confirm a conclusion established by independent evidence, but cannot be, in itself, safely relied on, on account of the general resemblance known to exist among the feet and shoes of persons of the same age and sex. But, where certain peculiarities are observed, which at once distinguish the impression from all others, an exact correspondence, verified by the test of comparison, becomes of the highest importance; and the value of such coincidences is obviously increased with the number of the peculiar marks' observed.” See, Burrill, Ciro. Ev., p. 267. As we have said above, there was no peculiarity about these shoes at all, in any respect, except that they were about a No. 3 in size. As stated before, aside from the evidence regarding these tracks, the only other criminative fact against the appellant was testimony of some previous ill will existing between him and R. M. Skip-with. The testimony regarding this ill will was that it was not of an acute character, and antedated the homicide a considerable length of time, with ample opportunities to have executed the threat if he had intended to do so. And, besides, it was shown that, since their previous altercation, they had met and conversed with each other, and were, apparently, on friendly terms. This same character of testimony as to ill will was shown to have existed against said R. M. Skip with by several Other persons in that community. Now, upon these criminative circumstances alone, to-wit: ill will and the vague testimony regarding a comparison of the tracks found and the shoes worn by defendant, the conviction of the defendant was procured. In our opinion, the most that can be said of this evidence is, that it raises a suspicion against appellant that he might have been the perpetrator of the homicide. Evidence in this case of the same character creates a suspicion against other persons in that community. The evidence, as stated, shows that other persons besides the accused entertained ill will against R. M. Skip with, and we can assume that, in a community of that size, a great number of persons wore No. 3 shoes. In addition, the record shows that a No. 12 guage gun may have been used in the homicide, from the size of the wad found on the ground. The record also shows that a number of persons in that community owned No. 12 guage guns. As was said in the case of Tollett v. State, 44 Texas, 95: “To sustain a conviction, it should appear, not only that the offense as charged has been committed,-but there should also be proof tending to establish that the party charged was the person who committed it, or was a participant in its commission to a degree of certainty greater than a mere probability or strong suspicion. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him. It is the duty of the court to require that such legal and competent evidence shall be adduced on the trial, in order to sustain a verdict of guilty.” We are of opinion that there is not that legal and competent evidence pertinently identifying the defendant with this
murder. ■ There is no better rule than that the testimony relied upon for conviction must be legal testimony. We are, of opinion that illegal testimony was admitted in evidence against the appellant. Appellant proved that some person at night had thrown a brickbat at R. M. Skipwith. Over the objections of the appellant, the State proved, by J. W. Quarles, that Martin said (not in the presence of the defendant)that defendant threw the brickbat at R. M. Skipwith. This was, evidently, hearsay testimony of a very material character. It was not admissible, because appellant had proved that some one had thrown a brickbat. He had a right to make this proof, and the State had a right to prove that he was the man; but the State must prove it by competent testimony, and not by hearsay evidence. The matter pertaining to the special judge and the regular judge both participating in this trial will not arise upon another trial. As it is an important question, we hold that there was no error. See, State v. Womack, 17 Texas, 237; Edwards v. James, 13 Texas, 52; Coles v. Thompson (Tex. Civ. App.) 27 S. W. Rep., 46; Railway Company v. Crawford, (Tex. Civ. App.) 29 S. W. Rep., 958; 1 Thomp. Trials, § 213 et seq. The State introduced the witness, Proctor, and asked him if he had not inquired of Mrs. J. W. Cox for a shotgun, after the killing of Mrs. Skipwith. This he denied. He was then asked if he did not so swear before the grand jury, when they were investigating this, case, and if he did not further swear that she replied she did not know where it was. This he also denied. The State then called one Peeples, who was a member of said grand jury, and, over objection of appellant, proved by him that the grand j ury had asked these questions of the witness, Proctor, and that he testified before said grand jury that he did inquire of Mrs. Cox for said gun, and she stated, in reply to him, that she did not know where it was. In the first place, by a reference to the statement of facts, this matter was altogether immaterial. Suppose Mrs. Cox had stated that she did not know where the gun was, we cannot see its. pertinency to this case. If she had sworn that, at the time or about the time of the shooting, that gun was in .the house, then this would have been important testimony for appellant; but she makes no such statement. Mrs. Cox did not testify that she knew where the gun was at the time of the shooting. If Proctor had sworn that she said that she did not know where the gun was, this would not have been impeaching her, but would have been in accord with her sworn testimony. It certainly cannot be contended that they could impeach Proctor, when he denied, himself, making any such statement. A witness cannot be impeached by proving contradictory statements, unless the statements denied were injurious to the party introducing the witness. A mere failure to make certain proof will not warrant this. In the first place, Mrs. Cox could not have been impeached by Proctor, because there is no conflict; and, in the second place, you could not impeach Proctor, because he had sworn to nothing injurious to the State. This is a roundabout way of getting in hearsay testimony, and is not warranted by law. We have repeatedly written upon this subject, and we deem it unnecessary to add
Anything to what we have already said. We think the rules pertaining to this matter have been very clearly stated. See, Paris v. State, 35 Tex. Crim. Rep., 82. We are not to be understood as holding that this ease should or should not have been continued. However, we are impressed with the belief that some of the facts set forth in the application were very material; bxit we will not discuss this matter, as it will not likely arise upon another trial. The judgment is reversed, and the cause remanded.
Reversed and Remanded.