MORROW, Judge.
Appeal is from conviction for murder. Punishment was fixed at confinement in the penitentiary for ten years.
There is evidence in the record that for some time prior to the tragedy the deceased and appellant were not on friendly terms; that on the afternoon of the day of the homicide, the deceased cast reflections upon the Taylor name, resulting in a difficulty between him and Hugh Taylor, the appellant’s cousin—both were on horseback, and the deceased chased Hugh Taylor, whereupon the appellant, who was present, went to his cousin’s house for the express purpose of getting a gun to use in aiding his cousin in his conflict with deceased —that failing to get the gun he went to the store of his uncle where he had previously left his own shotgun, and secured it and at the same time some shells loaded with buckshot. The deceased lived on a public road about half a mile East of Taylor’s store; on the same road near the store lived Ivan Taylor, the appellant’s brother, and about midway between lived the appellant. The deceased had a field or pasture on the opposite side of the road at a point West of appellate house and East of Ivan Taylor’s house, and the father of appellant lived Southwest from appellant’s house about 500 yards. It was shown that after obtaining the gun and shells, and loading the gun, appellant and his brother left the store at the same time, appellant on horseback and Ivan on foot; and that shortly before their departure appellant said to Ivan: “Don’t shoot too low.” The deceased kept his milk cows in his field or pasture mentioned, and his custom-—known to appellant—was to turn them out of the pasture late in the evening. When appellant left the store he rode first to his brother Ivan’s home, departing from the road which led to his own house, he went to his father’s and from thence to his own home, his theory and the testimony of himself and his wife tending to
show that he reached his home before the homicide and remained there until after it took place, leaving the horse which he was riding in his lot. A witness named Stevens, traveling towards Taylor’s store in his buggy, passed the home of deceased and stated that about that time he heard a shot fired, and saw the wife of deceased milking, she having turned part of the cows in the lot and the others were standing in the lane, and that on going by the field or pasture of deceased this witness saw the horse of deceased bridled and saddled and loose, without a rider, and about the same time saw a man some distance away passing through the field or pasture, in which there was some undergrowth. The witness did not recognize the man he saw, though he took it to be the deceased. The man was wearing a coat, however, such as that worn by the appellant. The appellant and his wife claimed that at the time Stevens passed appellant’s .house appellant was standing in the lot, and that Stevens was seen by them, though Stevens disclaimed seeing anyone at the appellant’s house at the time. The shot was fired near sundown, and the deceased was killed by a load of buckshot fired from a shotgun, entering his head. Two or three days after the homicide tracks were found in the field or pasture, some of them coinciding with the place where the man was seen by Stevens, and some other places near where the deceased was killed, in which tracks the shoes, which were obtained by the sheriff from the appellant after the homicide, were fitted. The appellant testified at the trial that he was wearing boots at the time of the homicide, and so did his wife and mother. There were indications on the ground tending to show that the shot was fired from ambush. Some of these facts were uncontroverted, some established by conflicting evidence, and some by the testimony of witnesses whom the appellant sought' to impeach by evidence that they had made contradictory statements.
It is true that to sustain a verdict based upon circumstantial evidence alone, each fact necessary to a conviction must be established by competent evidence beyond a reasonable doubt, but the jury, being judge of the facts proved, weight to be given the testimony, and the credibility of the witnesses, their finding as to the existence of a given fact is not to be overturned for the reason that it is supported by conflicting evidence or by witnesses against whom .there has been introduced discrediting testimony. Texas Code of Criminal Procedure, Art. 786; Vernon’s Criminal Statutes, vol. 2, 687. W§ cannot, therefore, sustain the appellant’s contention that the evidence is insufficient because it is in part conflicting and in part the testimony of witnesses whose credibility has been assailed.
On the contrary, we must assume, in passing upon' the sufficiency of the evidence, that questions involving the credibility of witnesses and conflicting testimony have been determined in favor of the State. Vernon’s Texas Crim. Statutes, vol. 2, p. 690, cases in note 17-18. While this court has the right to reverse a judgment of conviction on
account of the insufficency of the evdence, (Texas Code Crim. Procedure, Art. 939) and it becomes its duty to do so “if the guilt of the accused is not made to appear with reasonable certainty" (Mitchell v. State, 33 Texas Crim. App., 577), no fixed rule has been devised which will in all cases furnish a certain standard. Necessarily each case must in a measure'be tested by its own facts. Mitchell v. State, 33 Texas Crim. App., 577; Hampton v. State, 1 Texas App., 652; Burrill on Circumstantial Evidence, p. 737; Wills on Circumstantial Evidence, p. 188. However, when a jury, advised of the restrictions which the law places upon them in condemning one on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own, unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency.
This, in the instant case, we are unable to do.
In addition to his attack on the sufficiency of the evidence because of contradictions and impeachment, he urges that the proof with reference to tracks does not exclude the theory that they were made by another; that the witness who saw a man near the place of' the homicide did not identify appellant as the man he saw; and points out what he regards as similar element of weakness in some other parts of the testimony. The evidence upon these matters was, in our judgment, consistent with the guilt of appellant, and not inconsistent with his innocence. The law does not require that each fact proved standing alone be of such weight as to establish guilt. Vernon’s Texas Crim. Statutes, vol. 2, p. 595; Marshall v. State, 5 Texas App., 373; Crass v. State, 30 Texas App., 480, The facts must be measured in their relation to each other. It is the combined force of the consistent, facts upon which the verdict rests. Hocker v. State, 34 Texas Crim. App., 359; Parish v. State, 85 Texas Crim. Rep., 75, 209 S. W. Rep., 670.
In Porch’s Case, 50 Texas Crim. App., 337, a conviction for murder was sustained upon evidence quite similar to that in the case in hand. Appellant refers to Wilkie’s case, 83 Texas Crim. Rep., 490, 203 S. W. Rep., 1091, as furnishing a precedent controlling in his favor the decision of this case. We do not think so. It is illustrative of the view hereinbefore expressed—that in testing the sufficiency of the evidence, the facts of the particular case are controlling. The principle there applied was a well established one, namely, that in a case of circumstantial evidence where the testimony disclosed that there was available to the State pertinent and important evidence which was not introduced, that the reasonable presumptions that arise therefrom are considered in favor of the accused. The court in deciding that case regarded certain evidence, which was available to the State and which was not. introduced, as affording a presumption so inconsistent with some of the main facts relied upon by the State that the cogency of the evidence upon which the conviction rested was de
stroyed. So far as the principle obtains in the instant case, it arises from the suggestion by the evidence that there were others who had motive and opportunity to commit the offense, and the existence of the hypothesis that it was committed by them and not by the appellant. In this case, the theory was met by evidence which was regarded by the jury as eliminating the theory that the homicide was committed by any other than the appellant.
The court was not in error in refusing to sustain appellant’s motion to require the district attorney to deliver certain alleged written statements in his possession, consisting of the testimony of some of the witnesses in the case delivered before the grand jury and therein reduced to writing and signed by them. These were not public documents as were those involved in Jenkins v. State, 45 Texas Crim. App., 176. See Goode v. State, 57 Texas Crim. App., 228. The statute limits the use to be made of evidence given before the grand jury. Vernon’s Code of Crim. Procedure, Art. 416; Christian v. State, 40 Texas Crim. App., 671. On the subject, Mr. Wharton, in his work on Criminal Evidence, Sec. 564a, says: ‘'The general rule is that an accused in a criminal case has no right to an inspection of the minutes of the grand jury returning the indictment against him, either before or during the trial, but this is a matter resting in the discretion of the court, and, where some special reason exists, such as to enable the accused to properly move to set aside the indictment, he may be permitted to inspect the minutes of the proceedings.” See also Thompson on Trials, page 2096; American and English Encyclopedia of Law, vol. 17, p. 1291.
The motion does not specify the names of the witnesses nor the substance of their testimony, nor is there any suggestion that the documents in question were used on the trial against the appellant so as to make them available to him for the purpose of cross-examination. Under the rule recognized in Green v. State, 53 Texas Crim. App., 491; 22 L. R. A., New Series, 707.
The appellant sought to introduce testimony of a witness to the effect “that at and shortly before the time Chamberlain was killed there were a number of other people living in _ that neighborhood who were on bad terms with said Chamberlain, and who had had trouble with him.” It appears from the qualification that there was no effort by appellant’s counsel to name the persons inquired about, the locality of their residence, and their whereabouts on the day of the homicide. The same question of law involved in this inquiry was decided against appellant upon former appeal of this case, upon the authority of Wallace v. State, 46 Texas Crim. App., 349; McCorquodale v. State, 54 Texas Crim. App., 344; Ogden v. State, 58 S. W. Rep., 1018; Brown v. State, 74 Texas Crim. App., 356. The leading ease relied upon by the appellant supporting the proposition that there was error in excluding the testimony referred to is Dubose v. State, 10 Texas App., 246. The point there in question is thus stated
in the opinion: “One Bacquet was a very important, in fact, the main’ witness for the State. Besides his evidence there is no fact tending to produce anything more than a bare suspicion against the defendant. The record contains some evidence inculpating this witness. The defendant offered other evidence upon the trial, tending to connect this witness with the-murder. This evidence consisted of motive, threats and opportunity to kill the deceased Benton. To the introduction of these facts the State objected, and the court below sustained the objection; to which ruling the defendant excepted and reserved his bill of exceptions. ’ ’
It is to be noted that in the Dubose case the proffered evidence related to a specific person, and the evidence excluded consisted of “motive, threats, and opportunity to kill.” To the admissibility of such evidence we firmly adhere. We reversed this case on a former appeal because the trial court had rejected evidence of this character. Taylor v. State, 81 Texas Crim. Rep., 359, 195 S. W. Rep., 1147. On the present trial, following the decision of a former appeal, the court admitted proof that members of the Fisher family and others entertained ill-will against the deceased, and that they were within such proximity to the .homicide as to present a reasonable hypothesis that they or some of’ them were responsible^ for the crime. The evidence, a rejection of which is now complained of, was wholly indefinite. Touching the subject in Harrison v. State, 47 Texas Crim. Rep., 393, relied upon by appellant, the following is said: “The rule is now well established that evidence which merely shows some animus or hostility of some third person against the deceased, and no proximate connection with the killing, will not be admitted. ’ ’
That such evidence is remote to a degree that it is of no weight is the opinion' expressed not only by the learned judges of this court in former days, but by many in other jurisdictions. ■ It re.sts, like other rules of evidence not statutory, upon the opinion of many jurists, often expressed in their solemn decisions. The rules of circumstantial evidence do not require that the circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but the hypothesis intended is a reasonable one consistent with the circumstances and facts proved, and the supposition that the act may have been committed by another person must not be out of harmony with the evidence. Schultz v. State, 13 Texas, 401; Hamlin v. State, 39 Texas Crim. App., 606; Porch v. State, 50 Texas Crim. App., 335. The fact that a witness was willing to state that some other person, unnamed, unidentified, and whose whereabouts at the time of the homicide there was no offer to prove, entertained ill-will towards the deceased, afforded no reasonable hypothesis accounting for his death.
The proposed evidence whereby the appellant offered to prove by the witness McMahan that a person named Fisher claimed that Chamberlain had tried to waylay and kill him was, we think, properly re
jected as hearsay. Proof was admitted that Fisher and Chamberlain were on unfriendly terms. Fisher was present and available as a witness. If the details of his transactions with deceased were admissible as evidence, his testimony thereto would have been the best evidence. We are also of the opinion that the declaration by Mrs. Chamberlain, the wife of the deceased, made some time before his death, that she had left home because of mistreatment by her husband, was properly rejected under the hearsay rule. Her testimony was available.
We do not think the complaint of the fact that the sheriff testified that after he arrested appellant and without warning him he received from appellant a pair of shoes which he subsequently used in comparison with certain tracks found about the scene of the homicide, shows an infringement on the statutory rule against the receipt of a confession from one who is under arrest and unwarned. The point seems to be decided against the appellant’s contention: Walker v. State, 7 Texas App., 245; Thompson v. State, 45 Texas Crim. App., 192; and various cases cited in Rose’s Notes on Texas Reports, vol. 5, 50.
The appellant on his trial testified that at. the time the homicide took place he was wearing boots.. The State on cross-examination proved by him that “he might have said on a previous trial that on Wednesday after tb-3 killing be had stated that he did not remember whether he had on boots or shoes on the day Mr. Chamberlain was killed.” The admission of this cross-examination is made the basis of complaint upon the ground that it violated the statutory rule against repeating the statement of one accused of crime while under arrest and unwarned. We understand from the bill that on the former trial the sheriff, without objection, testified to a conversation with the appellant touching the shoes that he got from him while he was under arrest and unwarned, and that on that trial while appellant was not under arrest he voluntarily took the stand and made the statement quoted above. We think, he having on the first trial waived any objection to the sheriff’s testimony and in his own testimony upon that trial given his explanation of his conversation with the sheriff, that the prosecution was within its rights in reproducing on this trial what the appellant said on-the former trial. Branch’s Texas Crim. Statutes, sec. 328; Collins v. State, 46 S. W. Rep., 935.
Two witnesses by the name of Stevens gave important testimony for the State in detailing a conversation between appellant and his brother, Ivan Taylor, and between Ivan Taylor and the uncle of the appellant, during which conversation—according to the testimony of these witnesses—certain cartridges were obtained and appellant’s gun loaded with them. The appellant on cross-examination laid a predicate to impeach these witnesses by contradictory testimony given by them at the examining trial, and upon their denial that they made
contradictory statements the appellant introduced evidence going to contradict them by showing that their testimony on the examining trial was different from that on the present trial. The State subsequently supported these witnesses by statements made by them before the examining trial and consistent with the testimony given on the trial of the case. While the courts of many jurisdictions reject this character of testimony, those in our jurisdiction have uniformly received it. Bailey v. State, 9 Texas App., 99; Hamilton v. State, 36 Texas Crim. App., 373; White’s Texas Code of Criminal Procedure, Sec. 1119, p. 729, subdivision 4; Branch’s Annotated Texas Penal Code, Secs. 181 and 182; Cyc. vol. 40; p. 2760. We discern in the instant case no deviation from the rule of evidence prevailing in this State permitting a witness who has been impeached by proof of contradictory statements to be sustained by proof of statements in harmony with those made by him upon the trial, where the sustaining statements are made under circumstances disclosing no motive to state other than the truth.
The same complaint is made of the receipt of testimony, from the witness Morris, the bill stressing the fact that the effort to impeach Morris was by showing that his testimony given at the examining trial in June was not in harmony with that given by him upon the second trial of the case, and the sustaining testimony was that given by him upon the first trial of the case following the examining trial in June. The witness on his cross-examination denied making the conflicting statements, and there was developed no interest of his in the case to furnish a motive for changing his testimony between the time he testified on the examining trial in June and that on which he gave his testimony in November. We have been referred to no instances in which the court has held that the lapse of time was the test of the admissibility of such testimony, though our attention has been drawn to a number of cases in which the sustaining evidence related to conversations or statements made by the witness subsequent to the impeaching statements. See Hardin v. State, 57 Texas Crim. Rep., 401, 123 S. W. Rep., 615; Pitts v. State, 60 Texas Crim. Rep., 524, 132 S. W. Rep., 801; Northcut v. State, 70 Texas Crim Rep., 577, 158 S. W. Rep., 1004; Baldwin v. State, 199 S. W. Rep., 468; Franklin v. State, 88 S. W. Rep.. 357; Vanhooser v. State, 55 Texas Crim. Rep., 114, 113 S. W. Rep., 285; Johnson v. State, 42 Texas Crim. Rep., 377, 60 S. W. Rep., 48. Our conclusion is that the objection made applies to the weight and not to the admissibility of the evidence.
Appellant’s mother, appearing as a witness for him, testified that at the time of the homicide he was wearing boots and not wearing shoes. The State proved by her on cross-examination that in her testimony given at the
habeas corpus
hearing, she did not make any statement to the effect that appellant was wearing boots. This inquiry appears from the bill to have been made and answered with
out objection. The State then made a further inquiry of the witness, asking her if she did not know at the time she was testifying on the
habeas corpus
trial that the State was contending that her son wore a pair of shoes at the time of the killing, and these shoes had been obtained from him and fitted into certain tracks found near the scene of the killing and that these shoes fitted into the tracks, and that the State expected to make such proof against her son on his trial. She gave an affirmative answer to this inquiry, and it is made the basis of complaint.
It appears from the bill of exceptions that by way of explanation it. was shown that the testimony on the
habeas corpus
trial, which only involved the question of bail—which was granted—was, at the request of the judge trying it, made brief, and that there was not a full development of the ease. With this before the court, and without objection, the fact that Mrs. Taylor had not on the
habeas corpus
hearing mentioned her son’s wearing boots, we deem it not improper for the State, as bearing upon the credibility of the testimony that she had given, to show that she at the
habeas corpus
trial understood the importance of proving her son wore boots on the day of the homicide. The suggestion in the bill that the question was so framed as to carry to the jury by hearsay the contention of the State at the time of the
habeas corpus
trial, if a just criticism, is not by us regarded as a material one, for the reason that the accepted qualification of the bill discloses that the information conveyed by the inquiry related to facts already before the court. From the qualification we quote the following: “The facts showed that on Wednesday after the killing on Friday the sheriff arrested defendant and after Ms arrest procured from him a pair of shoes and compared these shoes with the tracks found going to and from the place of the killing. Before the trial of the
habeas corpus
and before the mother of the defendant testified on that trial, the attorneys for defendant and the defendant knew that the sheriff had testified that the defendant' had told him that he had on the shoes on the day of the killing, and knew that the sheriff testified that the shoes given him by defendant when compared with the tracks at the place of the killing fitted the tracks exactly. ’ ’
The court ordered a special venire of1160 men. There had been selected by the jury commissioners persons to serve as petit jurors for each of the four weeks of the term, and each of these names were written upon a separate slip of paper, placed in a box, and there were drawn therefrom 160 names which were placed upon the list and furnished to the sheriff, in connection with a special venire writ, and summoned by the sheriff to serve as the special venire in appellant’s case. Appellant, by a timely motion, objected to this procedure, claiming that it was unauthorized by law.
Prior to the year 1907 there was in the Code of Criminal Procedure, Art. 647, which was as follows: “Whenever a special venire is
ordered, all the names of all the persons selected by the jury commissioners to do jury service for the term at which such venire is required shall be placed upon tickets of similar size and color of paper, and the tickets placed in a box and well shaken up; and from this box the clerk, in presence of the judge, in open court, shall draw the number of names required for such special venire, and shall preparé a list of such names in the order in which they are drawn from the box, and attach such list to the writ and deliver the same to the sheriff. ’ ’
By the Act of April 18, 1907, an amendment to the jury law was enacted in which Art. 647 was re-written so that it read as follows: “Whenever a special venire is ordered the clerk or his deputy, in the presence and under the direction of the judge, shall draw from the wheel containing the names of jurors, the number of names required for such special venire, and shall prepare a list of such names in the order in which they are drawn from the wheel, and attach such lists to the writ and deliver the same to the sheriff, and the cards containing such names shall be sealed up in an envelope and shall be retained by the clerk for distribution, as herein provided. If from the names so drawn any of the men are empaneled bn the jury and serve as many as four days, the cards containing the names of the men so serving shall be put by the clerk, or his deputy, in the box provided for that purpose, and the cards containing the names of the men not empaneled shall again bé placed by the clerk, or his deputy, in the wheel containing the names of the eligible jurors.”
In the revision of the Code in 1911, Article 647 as last above quoted is brought forward as Article 660, while Article 647, as it previously existed, is omitted from the Code. The appellant rightly contends that the effect of this procedure was to repeal the provisions of the old Article 647 and substitute therefor the new provisions thereof now embodied in Section 660 of the C. C. P. The other provisions of the act of 1907 render the amended section, Article 660, effective only in those counties in which the jury wheel is in vogue, and such wheel not being in use in the county in which the trial took place, the appellant contends that the special venire in his case was selected in accord with the terms of and provisions of the statute which was repealed, and that by reason thereof his motion to quash the venire writ should have been sustained.
Treating the old Article 647, quoted above, as repealed, there remained in the statute on the subject Article 655, which is as follows: “A ‘special venire’ is a writ issued by order of the district court, in a capital case, commanding the sheriff to summon such a number of persons, not less than thirty-six, as the court in its discretion may order. ’ ’
Other articles provide that either the State or the accused may secure an order for a special venire. Article 658 provides that the order shall specify the number of persons to be summoned, and the
time that they shall appear. Article 659 provides for the setting of capital cases. Art. 661 provides: “Whenever the names of the persons selected by the jury commissioners to do jury service for the term shall have been drawn one time to answer summons to a
venire facias,
then the names of the persons selected by the said commissioners, and which form the special venire list, shall be placed upon tickets of similar size and color of paper, and the tickets placed in a box and well shaken up; and, from this box, the clerk, in the presence of the judge, in open court, shall draw the number of names required for further service and shall prepare a list of such names, in the order in which they are drawn from the box, and attach such list to the writ, and deliver the same to the sheriff; and it shall furthermore be the duty of the clerk and he shall prevent the name of any person from appearing more than twice on all of such lists.”
Art. 661a is as follows: “Whenever district court shall have convened, and a day shall have been set for the trial of the different capital cases which call for a special venire, the men whose names may have been drawn to answer summons to the venire facias in the different capital cases shall be immediately notified by the sheriff to be in attendance on the court on the day and week for which they were respectively drawn to serve as veniremen for said day and week; and such notice shall be given at least one day prior to the time when such duty is to be performed, exclusive of the day of service.”
This article is also found in the Civil Statutes, 1911, Article 5161. The appointment of jury commissioners, and their oath and qualifications is provided by Title 7, Chapter 1, C. C. P., and by Articles 5135-5136 of the Civil Statutes they are required to select persons to serve as jurors for the week, and to place the names on folded paper in a box and draw therefrom jurors for each week of the term. Other provisions provide that these jurors for the week shall be listed and preserved by the clerk, and it is from such a list that the special venire in the instant case was drawn.
The right of trial by jury is guaranteed by the Constitution, and the Legislature given power to pass such laws as may be needed to regulate the same and maintain its purity and efficiency. Constitution, Art. 1, Sec. 15. The jurisdiction to try felony cases having been conferred by the Constitution upon the District Courts, it follows that they are not without power to organize a jury to comply with the mandate of' the Constitution. In organizing a jury, however, they must follow the procedure designated by the Legislature, but in the absence of statutes prescribing the manner in which the jury is to be selected and formed, the trial by jury will not thereby fail, but the courts may supply the omissions. Clawson v. United States, 114 U. S., 477; Lovejoy v. United States, 128 U. S., 173; Green v. State, 53 Texas Crim. Rep., 490; Ruling Case Law, vol. 16, p. 231, See. 49.
It is our opinion that the unrepealed statutes referred to furnish authority for ordering the special venire drawn from the list prepared by the jury commissioners. If it be conceded, however, that the repeal of Article 647 left no statutory method for selecting the veniremen, then the method adopted by the court in exerting its inherent power to obtain a venire was not opposed to any law, and it not appearing that it resulted in any injury to appellant, the refusal" to quash the writ, was not in error.
Finding in the record no error which would authorize the reversal of the judgment, its affirmance is ordered.
Affirmed.