The conviction is for murder; the punishment, ninety-nine years in the penitentiary.
The indictment charged that on or about the 31st day of August, 1961, the appellant did "unlawfully, voluntarily and with malice aforethought kill and murder Laura Baker in some way or manner, and by some means, instruments and weapons to the Grand Jurors unknown * * *."
The foreman of the grand jury which returned the indictment against appellant testified that in its investigation of the case the grand jury was unable to determine the actual means or the kind or character of weapon used in killing the deceased.
Appellant and the deceased were husband and wife.
Lloyd Hotz, called as a witness by the state, testified that on the day in question the appellant took the witness and his woman companion to his home out in the country from Cuero. Arrangements were made for appellant to return that evening around 7 o'clock and take them back to town. Appellant returned about dark in his panel truck. At such time, his wife was with him. Both had been drinking. After Hotz informed appellant that he was not going back to town, appellant and his wife left. Twenty minutes later, appellant returned to the house. When Hotz told him to have his wife come in, appellant replied: "That bitch better not come in here." While he was lying on the porch his wife came up on the porch and in a "kind of suffering voice" said: "'Loyd, give me a drink of water.'" Hotz got some water and told appellant to give it to his wife, who was "kind of slumped back on the porch." Appellant took the water and threw it in his wife's face, saying: "'I told you not to follow me, you bitch, you.'" Hotz then told appellant not to mistreat his wife, at which time appellant pulled her off the porch and kicked her in the left kidney. Thereupon, Hotz grabbed appellant, who ran to his truck and returned with a .22 calibre rifle. Hotz and his woman companion then ran out the back door. Hotz testified that he then heard appellant start his truck, back out onto the pavement, and proceed down the highway very fast; that after he had traveled some two hundred fifty yards he "kicked it into second right quick * * * jammed all of the brakes * * *" and then it sounded like the motor was "running kind of idle like" and appellant was either backing up or turning around. Hotz stated that he then heard appellant call: "'Loyd'" and that "'he hollered three or four times * * * I killed mamma. I killed mamma.'"
The proof shows that there were drops and smears of blood on the front porch of Hotz's house and drippings of blood from the house to the front and out into the public road. Some two hundred fifty yards from the house a pool of blood was in the road and some blood had run off to one side.
Dr. A. J. Bohman, who pronounced the deceased dead upon arrival at the hospital, testified that at such time she was very bloody and had a huge laceration on the back of her head, her eyes were full of blood, there were bruises on her forehead, nose, knees, and elbows, and that there was a depressed fracture on the left side of the skull where the bones were pushed in and that "You could feel all the way down to the base of the brain." The doctor stated that in his opinion the cause of death of the deceased was multiple skull fractures and intercranial brain damage which was caused by more than one blow to the head.
Dr. Herbert Francis Cable, who performed an autopsy upon the body of the deceased, gave a similar description of the injuries and wounds and expressed his opinion that the cause of death of the deceased was brain hemorrhage from fracture of the skull. He also testified that in his opinion the skull fracture and other wounds were similar to ones caused by more than one blow.
As a witness in his own behalf appellant testified that on the day in question the state's witness Hotz hired him to help him move; that he carried Hotz and his woman companion to the house that morning and returned to the house that night with his (appellant's) wife. Appellant related that when Hotz stated that he was not going to move, he and his wife left in the truck and as he turned a corner out on the highway his wife fell out of the truck. He turned around and saw her walking up a lane leading to the house, after which they went to the house and he washed her face with water. Appellant and Hotz got into an argument. Appellant and his wife left. Appellant stated that he put his wife in the back of the truck, because the chair used in front as a seat on the passenger side was loose; that he then drove off as fast as the truck would go and as he changed from "second to high" he heard the back door fly open and he looked back and saw his wife was not in the truck. He then turned around, drove back, and saw his wife lying flat on her back in the road. Appellant stated that after he went to where she was and saw she was breathing, he called to Lloyd and said: "Bring me some water. Ma is hurt." Appellant stated that when he did not bring the water he went to the house and got some and returned. While he was bathing her face, someone drove up and he told the person to call the police and an ambulance. He stated that he then put his wife in the back of the truck and drove straight to the hospital. Appellant denied that he hit his wife on the day in question and denied that he killed her.
The court submitted the case to the jury upon a charge on the law of circumstantial evidence. The defense of accident interposed by appellant was also submitted to the jury.
We first overrule appellant's contention that the evidence is insufficient to support the conviction because the state failed to prove the corpus delicti. The evidence adduced by the state is sufficient to show that the deceased came to her death by violence and that appellant was the guilty agent. The proof of his statement: "I killed mamma," at the scene of the homicide, together with the other proven facts and circumstances, is sufficient to exclude every other reasonable hypothesis except that of appellant's guilt, as required by the charge.
By formal bill of exception No. I, appellant complains of the failure of the district attorney to deliver to him a copy of the testimony of the state's witness Hotz before the grand jury, which the court had ordered delivered to appellant for the purpose of cross-examination.
The record reflects that the witness's testimony before the grand jury had been tape-recorded and a ...