Phelps v. State , 130 Tex. Crim. 189 ( 1936 )

It is further insisted that bill of exception number one complaining of the use in evidence of the clothing worn by deceased at the time of the difficulty presents reversible error. The bill is quite brief. The objection urged was that the only purpose in exhibiting the clothing was to inflame the mind of the jury, and because they were exhibited while the State was making out its case in chief, and not in rebuttal. It is impossible for us to say from the recitals in the bill that the clothing did not throw light upon the position of the parties when the cuts upon deceased were inflicted. The statement in the bill that the only purpose was to inflame the mind of the jury was a ground of objection only. The statement of facts reveals that the State's contention was that deceased and appellant were standing up when the wounds were inflicted, while appellant's contention was that both he and deceased were on the ground, deceased being on top of appellant when the wounds were inflicted. It is quite possible that the trial court, who could see the clothing and the cuts therein, thought they would aid in solving the very sharply controverted issue.

We think it immaterial that the evidence objected to came into the record upon the development of the case in chief if it became pertinent by reason of conflicts in the testimony which later arose. While the facts are quite different, application of the same principle will be found in Gregory v. State,92 Tex. Crim. 574, 244 S.W. 615; Klein v. State,104 Tex. Crim. 189, 283 S.W. 791; Murley v. State,105 Tex. Crim. 276, 288 S.W. 441; Mirales v. State,112 Tex. Crim. 67, 13 S.W.2d 868.

The other ground upon which appellant urges his motion for rehearing is that the trial court erred in the charge given upon communicated threats. It is perhaps subject to some of the criticism directed against it, but the authorities cited in our original opinion clearly show that it would not have been error to omit any instruction whatever upon the subject under the facts of this case. Appellant seems to have gotten more than he was really entitled to, hence we deem any error that might have occurred in the instruction given would not call for a reversal.

The motion for rehearing is overruled.

Overruled.

MORROW, P. J., absent.