HARPER, Judge.
Appellant was convicted of murder and his punishment assessed at sixty years confinement in the State penitentiary.
In this case the State was seeking to corroborate the testimony of Mrs. L. W. Ward, the wife of deceased, the State knowing her testimony would place her in a position to be an accomplice to the crime, and knew she would testify to adulterous relations existing between herself and appellant, the State relying on this to snow a motive for appellant to kill deceased, and to corroborate her, the State was adducing testimony that he was seen at or near her house frequently, and that he telephoned Mrs. Ward frequently. While making this proof the State called Charlie Smith as a witness and proved by him that appellant frequently used the telephone in the sheriff’s office and talked a great length of time. That he, Smith, 'had ascertained Mrs. Ward’s phone number was 409, and when appellant was talking over the sheriff’s phone he went to another phone and called for 409, and found that it was busy. The State also proved that appellant used this .phone so frequently and for so great a length of time, the sheriff had to object to appellant using the phone. At the time this testimony was offered appellant had not taken the stand and admitted the adulterous relations and had not admitted he talked several times a day— almost every day — with Mrs. Ward over the telephone. As said by this court in the Noftsinger case, 7 Texas Crim, App., 307, in a case depending on circumstantial evidence the mind seeks to explore every source from which any light, however feeble, may be derived. In this case, not knowing that appellant would testify, and he could not be compelled to do so, the State knew it must rely on circumstantial evidence to corroborate the testimony of Mrs. Ward as .to adulterous relations, and the court did not err in admitting the testimony. If this were not true, after appellant himself testified to.the adulterous relations and that he frequently talked to Mrs. Ward over the telephone— almost every day — the bills would not present error.
In the next bill it is shown that defendant called Leonard Ward, a son of deceased, as a witness and the record discloses that:
“When this witness was pnt on the stand and before he was asked any questions, the jury having been retired, the district attorney made the following statement:
“£We anticipate that they put this witness on for the purpose of laying a predicate for impeachment of him, this is the young man, son of the deceased, and we want to state to them so that they can not claim surprise that this young man testified at the inquest which was held the night the body left here, that he did not make these statements and that he did not know anything about the pistol and we want to apprise them of the fact so that they can not claim surprise, and we tender them the evidence which they had at"the habeas corpus, and they had this sworn testimony of the inquest and they can not claim surprise when they ask him these questions.’
“My name is Leonard Ward. I live at Detroit, Texas. I used to-live here in Cameron. I will be fourteen years old in August. I am the son of L. W. Ward, Jr., and his wife, Vasti Ward. I was living in Cameron at the time of the death of my father. I was at the house the night that he died. I was asleep at the time, but I got up. I was in a different room. The pistol shot woke me up, and I came'into the room. There was a light in the room when I came in. My mother had lighted the lamp. When I went in the room, I saw papa laying on the bed. I saw my mother in there. There was nobody else. My mother said he had shot himself. I never saw the pistol in my father’s hand until after Dr. Denson came.. It was only a short' while before he got there. When he came he found the pistol in his han¿. He took it off and laid it on the bed. I broke it open and the cartridges fell out on the bed. There were five of the cartridges. It was not a sixshooter. It was size .38, and shot five cartridges. I think I would know the pistol if I saw it. This is it. (38 S. & W.) I do not know whose pistol it was. I never did see it until that night. I don’t know whether it was my mother’s pistol or not. I never saw it until that night. I don’t know whether it was her pistol and whether she kept it in her trunk or not. I never saw it until that night. I did not trim one of the cartridges that went into the pistol. I never did see it. Mr. Story lives just across the fence from us. We lived on the same block, just a fence between us.' It is about fifty yards. Dr. Denson got there in just a few minutes. Mr. Story got there a little while after Dr. John got thei%. A minute or two after Dr. John got there he sent me after Mr. Story. I called for Mr. Story after I got to his house. I told him papa had shot himself. I did not show him the bullets when I went in there. I did not have them there. I did not show Mr. Story the bullets and tell him that I had trimmed one of them and that was the one that my father was killed with. I did not break the pistol until after he came. I did not say I trimmed the cartridge because I never did see any .38 cartridges there. I did not tell him that I had trimmed one of the cartridges and that that ,was the bullet that killed my father. I did not tell him at that time
or at any other time. I went into the house at Mr. Story’s. He got up and lighted a fire and let me in. I did not tell him that my father had shot himself with my mother’s pistol. I did not say whose it was. I did not state that he had shot himself with my mother’s pistol that she kept in her trunk. I did not say where my father got the pistol because I did not know whose it was. I did not tell him that I did not know how my father got the pistol out of the trunk. I did not tell him that the cartridge I trimmed was the one that killed my father. Mr. Story went back to our house with me. After we got back to the house Mr. Quinn Walker came over there. I don’t know how long before he came. He was a pretty close neighbor, just the other side of Mr. Story’-s. He got there five or ten minutes after Mr. Story came.”
The State did not cross-examine the witness further than to prove by him that he was fourteen years old, and had two sisters and a brother. After the witness had testified as above at the instance of defendant he sought to lay predicates to impeach the witness by asking him if he had not told Mr. Walker and others that his father had shot himself with his mother’s pistol. The court sustained the objection of the State and would not allow appellant to lay predicates to impeach the witness, and sustained the objections of the State when appellant offered witnesses to impeach the witness as to the question above propounded. In this 'the court did not err, as it is made to appear that the witness had testified at the inquest and by his testimony 'it was made plain that defendant could not expect the witness to testify to any such state of facts as he had testified otherwise at the inquest and the inquest papers had been tendered appellant’s counsel before he propounded any questions to the witness, and the witness had been called to< lay predicates to secure the admission of testimony otherwise inadmissible, and which could be admitted only to impeach him. One can not himself call a witness knowing or being informed that he would not so testify and lay predicates to impeach his own witness and thus secure the admission of testimony otherwise inadmissible. Under the common law one was not permitted to impeach his own witness, as he was supposed to vouch for the truthfulness of a witness called by him but our statute has slightly modified that rule (art. 815, C. C. P.). Appellant can not claim that he was surprised at the testimony of the witness — that he thought he could prove by the witness that the pistol founcl by deceased was his mother’s pistol. If the witness had so told the witnesses named by appellant he knew or could have known by reading the testimony when tendered him, that the witness had sworn at the coroner’s inquest that it was not his mother’s nor his father’s pistol. So it is manifest that the whole purpose of appellant in placing the witness on the stand was to lay a predicate upon which he could impeach the witness and thus get testimony admitted which was otherwise inadmissible. The rule is clearly stated in Branch’s Criminal Law, section 866, when one can and when one can not impeach his own witness. Scott v. State,
20
S. W. Rep., 549, is particularly in point. The authorities cited by appellant correctly hold, under our statute, when
one is surprised at the testimony of the witness, and the witness testifies to facts injurious to his cause, he then may show prior statements different from those which he testifies on the trial, and for this Teason there was no error in admitting the statement Cozier Walker made before the grand jury. Had appellant not been informed prior to the time he called the witness Leonard Ward and propounded to him the questions he did, that the witness would not so testify, and had testified to a different state of facts at the coroner’s inquest, he probably could claim that he was surprised at the testimony of the witness. But the bill and record discloses that he was given full information that the witness would not so testify, therefore there was no error in the ruling of the court.
The deceased was found in bed in a dying condition about 1 o’clock on the night of January
23,
and subsequently his father shipped the body to Detroit for burial. Mrs. Ward, wife of deceased, had a sister living at Temple, Miss Minnie Mayse, and on making its case the State proved by Miss Mayse that on February 5th appellant came to Temple and told her the father of deceased had come back to Cameron, and was having the household goods shipped, to Detroit, and that Mr. Ward, Sr., was blaming Mrs. Ward, Jr. (the wife of deceased) with the killing of the deceased, and that he, appellant, did not think Mrs. Ward did the killing. After this appellant placed Will Yates on the stand and offered to and could have proven by the witness that he told appellant that he had heard it rumored on the streets of Cameron that the wife of deceased was accused and suspected of murdering her husband. The witness would not have stated that he had heard Mr. Ward say so, nor that he so told appellant, nor would he have stated that he had heard a rumor that Mr. Ward accused his daughter-in-law of murder, nor did he so tell appellant. So the statement made by the accused to Miss Mayse, and the statement he could have proven was made to him by Will Yates were wholly different statements, and the court did not err in his ruling. If appellant could have proven by any witness that he had been told Mr. Ward was accusing his daughter-in-law of having committed the crime, such testimony should have been admitted, and this is ¿11 the authorities cited by appellant hold. But as the testimony of Will Yates would furnish no basis for the statement made by appellant to Miss Mayse, the ruling of the court presents no error.
After defendant had called Leonard Ward as a witness, and said witness had failed to testify to facts defendant desired, he, defendant, called Leonard Storey to testify as to what Leonard Ward had told him immediately after his father, L. W. Ward, was shot. And Leonard Storey testified that he was told by Leonard Ward that his father had killed' himself with his mother’s pistol; that he had cut the nose off of one of the bullets in the pistol, and this was the one that had killed his father. The State rigidly cross-examined the witness Leonard Storey and asked him if he had testified to such facts when before the grand jury, and the witness answered that no question had been propounded to him calling for such information. After this cross-examination the
State'offered no proof as to wbat bis testimony before the grand jury was, but stopped with the cross-examination of the witness, and in deference to appellant’s contention, it may be stated the cross-examination was such as would probably affect the weight the jury would give to the testimony of Leonard Storey on direct examination, but this will not authorize the introduction of testimony in support of the witness where he resided in and was well known in the county in which the trial was had. Had the State offered any proof to contradict or impeach the testimony of the witness, the testimony of Allen Hooks, and others would have been admissible as to what Storey had told them, but as the State contented itself with a rigid cross-examination and stopped there, the witness Storey could not be supported by showing that he had made similar statements to others as to the same facts he testified to on the trial. In McCue v. State, 75 Texas Crim. Rep., 137, 170 S. W. Rep., 280, et seq., we discussed the question of when, a witness can and can not be supported, citing a great many authorities, and there held that a witness could not be supported when the cross-examination went only to test the truthfulness of the testimony, and he was attacked in no other way. Cross-examination is intended to test the truthfulness of the evidence given on direct examination, and to say, because a witness had been cross-examined in a manner to weaken the weight of his testimony, he could be supported, would render a trial endless, and inject into every case testimony supporting each and every witness and cause a jury to lose sight of the main issue on trial. The same rule applies as to the effort to support the testimony of Mrs. Leonard Storey. The State introduced no testimony to impeach her.
The defendant on his direct examination stated he was an “Odd Fellow.” On cross-examination the State cross-examined him as to whether or not he was an Odd Fellow, and he answered that he had been. The State then asked him, “When were you expelled?” and appellant answered before objection could be made, “Since this has been against me.” As the court promptly sustained the objection when made, and the question of whether or not he was a member of the Odd Fellows Lodge had been injected into the ease on his direct examination by appellant, the bill presents no error. Had appellant not injected the matter into the case a different rule would prevail, but he having stated on direct examination he was an “Odd Fellow,” it was permissible for the State to ask him if he said he was an Odd Fellow, and to elicit a reply that he had been. It was improper to ask, <rWhen were you expelled from Odd Fellowship?” but as the court promptly sustained the objection to such question, and at once instructed the jury not to consider the answer, the bill presents no reversible error.
Wyatt Miller testified to material facts for defendant, and on cross-examination he was asked if he had not shadowed appellant and saw him throw some money to Mrs. Ward. He denied having done so, when he was asked if he had so told Y. P. Wooley, and he said he had not. Y. P. Wooley was permitted to testify that Wyatt Miller had so told him. Appellant contends this was permitting a witness to be impeached upon an immaterial issue. If it was upon an immaterial matter
Ms contention would be sound, but, as before stated, tbe relations existing between appellant and Mrs. Ward was a very material issue in this ease.
In a bill it is shown that Hon. J. M. Ealston, in presenting the case to the jury, said, “The records show a home in Cameron has been debauched and four little children disgraced and their lives ruined. Who is the guilty party? The evidence shows he sits before this jury with unmitigated brazenry, not paralleled in the annals of crime/’ The court sustained an objection to this argument and instructed the jury not to consider it. If any error was committed it was in sustaining the objection to the argument, because the record disclosed, and appellant admitted he had gone into the home of L. W. Ward, Jr., and engaged in acts of sexual intercourse with his wife. The evidence further showed that they had four children, and necessarily such conduct reflected on the children. It is true, that under this record appellant is not the only one subject to censure, Mrs. Ward’s conduct being equally censurable, yet we do not think the above remarks wholly unwarranted by the testimony. The bill further shows that counsel for appellant in presenting his defense, had been severe in their comments on Mrs. Ward, and said the evidence showed her to be a wayward and wicked woman, peddling her charms from San Angelo to Cameron— that she was a self-confessed adulteress and perjurer. Such remarks were not wholly unwarranted by the record, and appellant’s counsel was authorized to make such remarks, having some foundation in the testimony, and other remarks of similar import if he deemed it advisable, but when State’s counsel in reply to such remarks asked counsel for the defendant, “Why should you object, when you and your co-counsel stood before this jury and denounced this little woman as a strumpet, peddling her charms, and unworthy of belief?” This comment was also objected to. We are inclined to think the argument of both counsel for the State and appellant were legitimate under the record before' us.
In another bill it is contended that the district attorney, in his closing address, said: • “I want to tell you Mrs. Ward’s attitude and what she did when she was promised immunity by your good county attorney and myself. When she went into the county attorney’s office she
said
— * At this juncture the remarks were objected to, and while the objection was being made the district attorney continued, “She said, ‘Do you want me to tell the whole tMng?’ If you could have seen her then.” Here counsel for the State was told the court to cease, and the court instructed the jury not to consider the remarks, and the district attorney said, “If you object I will withdraw it.” The court said, “I have sustained the objection, and I now admonish the jury not to consider the remarks.” Under such circumstances those bills complaining of the remarks of counsel and none of them present error.
We have carefully read the court’s charge and appellant’s exceptions thereto, and none of the exceptions present error. The court’s charge on accomplice testimony, on circumstantial evidence, and on alibi is in
language frequently approved by this court. The charge of the court 'is an able and full presentation of the law of the case, under the testimony adduced, therefore it was unnecessary to give any of the special •charges requested.
The alleged newly discovered testimony, in the light of the affidavit •of C. H. Ruby, filed in reply to that‘ground of the motion, presents no reason why the court should have granted a new trial. Again, those grounds in the motion alleging newly discovered testimony and that the verdict was arrived at by lot are presented in a way we are not •authorized to review them. The term of court at which appellant was tried adjourned June 4, 1915. The evidence heard on these grounds of the motion'for a new trial was not filed in the trial court until the '27th day of August, 1915, seven weeks after the adjournment of court for the term. In Black v. State, 41 Texas Crim. Rep., 185, this court held:
“It is evident to our minds that these statutes refer exclusively to the statement of facts adduced on the trial of the case itself, and have no application to issues of fact formed on grounds set up in the motion for new trial. Except where the statute makes provision for the filing' of papers, which shall become a part of a record on appeal, after the adjournment of court, these papers must all be filed during the term. Our statute has not made provision for the filing of evidence, either ‘‘affidavits or otherwise/ which is adduced for' the purpose of sustaining grounds of the motion for new trial, and we are not cited to any cases which so hold. Nearly every ground set out in the Code of Criminal Procedure which forms the basis of a motion for new trial involves, matters of fact, and is the subject of contest. While this is true, the statute has not gone further, and provided, as in statements of facts, that this evidence can be filed after the adjournment of court. Nor could a statement of the evidence adduced upon the trial be so filed,' except for the warrant of the statute above mentioned. Itv seems that a contest may be had on the motion for new trial as to the diligence' of a defendant in seeking an application for continuance. This may. be determined by evidence, and this may be adduced when "the action' •of the court refusing the continuance is called in question by the motion for new trial. But it has been universally held, so fardas we are aware, that the action of a court overruling an application -for continuance must be perpetuated by bill of exceptions. We take it the same rule applies when the misconduct of the jury is alleged, or when the allegation is that the verdict has been decided by lot, or when a juror has received a bribe to convict, or that he has been guilty of any other corrupt conduct, or that any material witness for the defendant has been, by force, threats, or fraud, prevented from attending court, or where written evidence tending to establish the innocence of the defendant has been intentionally destroyed or removed so that it could not be produced upon the trial, and where newly discovered testimony is alleged. But these matters must be made part of the record during the term of court. There is no statute authorizing such matters to be perpetuated in papers filed subsequent to the term.”
This rule has been adhered to since the rendition of that opinion, and we copy in full again this ruling that the profession may understand and preserve such matters in a bill of exceptions filed in term time, if they desire to have this court review the ruling of the trial court on such matters. If such rule is deemed inadvisable, the Legislature should be requested to change the law in respect to such bills, as it has in other instances. We will state, however, that we have read the affidavits of Messrs. Eussell and Harrison attached to the motion for a new trial, and also the State’s contest, including the affidavits of eleven of the jurors, including Messrs. Eussell and Harrison; also the evidence heard on the trial, and if we were authorized to consider all these matters we would not be authorized to hold that the court erred It may be said that affidavits and evidence would disclose that the last ballot taken before adjourning for the night stood ten for conviction and two for acquittal. That when the jury convened next morning they discussed the case for some time, and it was agreed that each juror would write the punishment that should be assessed against appellant. That two of the jurors — Messrs. Eussell and Harrison-— wrote nothing, and the others wrote the term of years they thought should be assessed. This was added up and divided by twelve, and the result was between sixty-two and sixty-three years. After this was done, it was discussed, and the punishment was not fixed at this result, but by agreement of all the punishment was assessed at a different number of years, sixty years confinement in the penitentiary. While our decisions hold that an agreement beforehand to be bound by the result obtained in adding up the different number of years is a verdict by lot, yet many courts hold otherwise, where all jurors agree to it after the result of addition and division has been ascertained. We would not be understood as varying from the rule so long adhered to in this court, but the decisions of this court also have held always that where the result is obtained, and this result is not adhered to, and a different punishment assessed, to which all agree, it is not a verdict by lot. So if we could consider the statement of facts on this issue, the trial court did not err'in overruling the motion for a new trial on this ground, but followed the rule adhered to in this court. Pruitt v. State, 30 Texas Crim. App., 156; McAnally v. State,
57
S. W. Rep., 832.
This brings us to a consideration of the only remaining question, and to our minds the most serious question in the case — that is, the contention that the corpus delicti is not proven in accordance with the rules of law. It is true it was necessary for the State to prove that deceased was unlawfully killed, and, second, if murdered, that appellant fired the fatal shot, or was a party to the crime. Appellant’s contention is, however, • that the State must show, independent of the testimony of the accomplice, that deceased was unlawfully killed, is not supported by the authorities. The testimony of the accomplice alope is not sufficient to establish that, or any other fact, is conceded, but that the testimony of the accomplice must be wholly ignored, is not sound. If an unlawful killing must be shown by evidence other
than that of tbe accomplice, the testimony of an accomplice would, have no place in the record. We can and should consider the testimony in proving that or any other fact, bnt such testimony alone can not establish that or any other fact; there must be other facts and circumstances in the record tending to show that fact, corroborative of the accomplice testimony, as well as corroborative of the fact that appellant was the guilty party after a crime has been shown to have been committed. In the recent ease of Kennedy v. State (not yet reported) we had occasion to investigate this question, and there we quoted from the opinion of Judge Hurt in Kugardt v. State, 38 Texas Crim. Rep., 681, wherein it was said: “In other words, in establishment of the corpus delicti the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence.” This rule has been adhered to in this court in a number of cases since then. Little v. State, 47 S. W. Rep., 984 ; Matthews v. State, 39 Texas Crim. Rep., 553; Tidwell v. State, 40 Texas Crim. Rep., 38; Nicks v. State, 40 Texas Crim. Rep., 1; Gallagos v. State, 49 Texas Crim. Rep., 115; Frederickson v. State, 44 Texas Crim. Rep., 288; Sowles v. State, 52 Texas Crim. Rep., 17. By reading those cases and the authorities therein cited it is shown that the fact that deceased was unlawfully killed may be shown by circumstantial evidence, and the further fact, defendant’s connection with the crime may also be so shown.- It is further held, that a confession, or the testimony of an accomplice, while insufficient to establish that fact alone, will be considered in establishing both facts, and if the evidence, in addition to the accomplice testimony, tends to show that deceased was unlawfully killed and also tends to show appellant’s guilt of the crime, the evidence is sufficient to sustain the conviction. And this need not be shown by direct testimony, but may be shown by circumstantial evidence. It would be remarkable if direct or positive testimony could be obtained to show that a murder had been committed when the killing takes place in the dead hours of night — in this instance about 1 o’clock at night, after deceased had undressed and gone to bed. It is unquestioned he was killed by a pistol shot, the ball entering his head in front about three-fourths of an inch from the hair line. There is some slight evidence raising the issue that deceased’s wife might have killed him, and some that it might be a ease of suicide. The court submitted both these issues to the jury and they found that appellant fired the shot that killed deceased while he was in bed. Mrs. Ward testified that appellant tried to get her to kill her husM&d, but she refused to do so, but that she did agree to appellant killing him. That during the day appellant had told her he would kill him that night, and that she lay awake expecting appellant; that she finally went to sleep and was awakened by a noise in the room; that then she heard a pistol fire, after which she got up and lit a lamp, and deceased was lying on the bed shot in the head, with a pistol laying in his left hand but not gripped. That she never saw the pistol before; that it did not belong to deceased. Appellant insists that this does not exclude the idea that deceased may not have shot himself, as no one saw the shot fired, nor saw appellant
-at this bouse at this time. But the conversation she says she had with him the nest day could be legitimately construed, if true, into- an admission that he had caused the death. But we concede that her testimony alone would be insufficient to show that appellant was guilty of the crime, unless there are other facts and circumstances in evidence tending to connect appellant with the crime. It would be useless to recite the evidence showing the adulterous relations existing between appellant and deceased’s wife, as he himself testified to such relations, and testified that they existed from the latter part of 1913 until the date of deceased’s death, January 23, 1915. He also admits that in July, 1914, deceased caught him and Mrs. Ward in a compromising position at night, and appellant also admits that after that time it was not so easy for him to get access to Mrs. Ward at night; that “before he caught me her husband was sleeping across the hall and I would slip up to the window and talk to her and would have intercourse with her while he was in the other room; that afterwards the husband moved his bed into his wife’s room.” With this testimony of appellant in the record, a key is furnished with which to read the letter written by appellant to Mrs. Ward, which he admits writing, whether written in October, as he contends, or in December, as Mrs. Ward testifies. The letter reads:
“Dear Wife I going to write you 'a few lines if my finger is hurting me I do wish I could be with you to night I would try to make you enjoy yourself the best I could I do believe you love me sweet I love you better than anything are anybody in the world Dear if you make up your mind and do what we were talking about I would ’ be with you a hole lots of times but if you don’t think it best why all-right.
“I did not sleepe a bit good lasj: night but my finger did not hurt like I thought it would I went by about twenty minutes to ten Mama was there last night and we sit1 up and talke till eleven thirty and then went to bed sweet heart I wish I could see you when I wanted to and be with you all the so I would not have to write that is to cold and far off for me Honey do you want to be tied up like this all the time are not Dear one I know you don’t Honey if you was mine I could be with you all the time and feel good Dear do you want me with you are had you rather do this way sweet you are the dearest and sweetest little woman in the wide world but know what we are doing now is dangers to all off us so you decide and make up your mind what to do Dear I wish I could see you now my finger is pretty sore but I am big and can stand a hole lot of punishment I do not like to punish by having to stay away from you for that is the worst one I have but dear it is not going to be that way all the time is it sweet I heard you say no where are you anyway I am looking for you sweet sweet you are so dear to me I got up at five this morning so I could write you but every one comes in stops me so I will close hopping to be with you soon for all night and day to Dear I will if I ever get that chance so good by to the sweetest woman in the world.”
By all the testimony it is shown that this letter was written after
Mr. Ward had caught appellant and his wife in the compromising position, and after he had moved his bed into his wife’s room. When he writes, “Dear, if yon make up yonr mind and do what we were talking about I would be with you a whole lots of times,” it is made plain what he means when she testifies that they had been discussing killing Mr. Ward, and especially is this true when we take the sentence, “Dear do you want me with you or had you rather do this way, but yon know what we are doing now is dangerous to all of us, so decide and make up your mind what to do. I do not like to be punished by having to stay away from you, but dear it is not going to be that way all the time,” etc. When we consider, according to appellant’s own testimony, that this letter was written by him after the husband had moved his bed into his wife’s room, and his easy access at night stopped, we can readily understand what was meant, and a jury would be authorized to draw deductions that he meant that deceased was not going to be in the way all the time, and this letter corroborates Mrs. Ward’s testimony in many material particulars, and in and of itself alone would have a tendency to show that appellant took the life of deceased that deceased might no longer be an impediment to his being with Mrs. Ward in the night-time. Then again the pistol found by deceased, with which the fatal wound was inflicted, Mrs. Ward testifies her husband owned no such pistol. In this she was corroborated by her son Leonard Ward, who was called to the witness stand by appellant, and who testified that he had never seen the pistol before. It was a .38 caliber Smith & Wesson pistol. Leonard says he never saw the pistol until that night. This would support a finding that it was not a ease of suicide. On the question of whose pistol it was, the pistol found by the dead man was introduced in evidence, and Milton Norton testified that he formerly worked for appellant in his meat market, and that he saw a pistol in the market in a pigeonhole under the counter jnd also in the desk; that he saw a small pistol there; that he never saw a pistol there like this (a .45 caliber pistol). “This is the pistol I saw there — the .38 caliber pistol found by deceased.” Cozier Walker also testified on direct examination that he worked for appellant and said, “There was a pistol there in the market. It was kept under the cash register. I can not say that was the pistol (referring to the .38 caliber Smith & Wesson found by deceased). It is one like that — might have been a little brighter. About the same size.”
Of course, the testimony of these witnesses was weakened on cross-examination, and appellant introduced testimony that the pistol seen in the market belonged to George Bolinger, and George Bolinger so testified on the trial. However, the State called the county attorney and three members of the grand jrííy, and they all testified when George Bolinger was before the grand jury Bolinger swore he owned no pistol and did not have one at the market. And the testimony further shows that if Bolinger had a pistol at the market it was a .45 caliber pistol, and Milton Norton is positive that the pistol He saw at the market was not that large a pistol; was a .38 caliber pistol. This testimony, if believed, would tend strongly to connect the defendant
with the commission of the offense. It would show deceased in possession'of no such pistol, and appellant in possession of that character of pistol, with a motive for desiring that deceased be gotten out of his way where he could have easy access to his wife at night. The testimony further shows, exclusive of the testimony of Mrs. Ward, that when the body was shipped and she left to accompany it, she turned the keys of the house over to appellant; that upon getting to Detroit she wrote appellant, and in replying to the letter he sent her the newspaper clipping commenting on the death of her husband in which it was called a suicide, and said in the letter, “All is well at this time— I am sending you the clippings from the paper.” These and other facts and circumstances in the case tend to show that the deceased was murdered in his bed at night, and tend to connect appellant with the commission of the offense, and when we also take into consideration the testimony of Mrs. Ward, the accomplice, it would authorize a jury to find that the testimony as a whole was of a conclusive nature, producing, in effect, a reasonable and moral certainty that the accused and no other person killed Mr. Ward.
The judgment is affirmed.
Affirmed.