Appellant was convicted in the District Court of Hays County of murder, and given eighteen years in the penitentiary. *Page 526
In view of our disposition of this case we shall discuss the facts no further than may be necessary to make plain our conclusions.
Appellant was a student in the University of Texas, and on the 9th or 10th of January, 1922, began boarding at the home of deceased under an arrangement, as testified to by him, made with Mrs. Ross, wife of deceased. On the 4th of the following February at about 9 o'clock p.m. appellant shot and killed deceased at the family home in South Austin. On the premises at the time were appellant, deceased, Mrs. Ross and two young sons of deceased, one of the latter being in bed with his mother apparently when the shooting took place. This boy and appellant testified for the defense. Deceased was staying in the country, and came in town the afternoon before he was shot that night. Deceased was shot through the body from the rear and was found by the officers lying in a dark dining room on the east side of a hall which seems to have run the length of the house north and south. Mrs. Ross' bed room was on the west side of said hall and was the southwest corner room on the ground floor. Appellant testified at length as to the facts claimed by him to have transpired at the time of and prior to the shooting, showing the character and disposition of deceased and his conduct toward his wife and children.
The charge of the court was excepted to for its failure to submit the defensive theories relating to appellant's right to defend Mrs. Ross and her child. A special charge was asked and refused, which is as follows:
"Gentlemen of the Jury: You are instructed that the defendant had the legal right to protect or defend Maggie Ross or her child, or either of them against an unlawful assault on the part of John Ross. If, therefore, you believe from the evidence that the deceased tried to force an entrance into the room of Maggie Ross with the purpose of unlawfully assaulting said Maggie Ross or her child, or either of them, and that defendant knew of such unlawful purpose, or if it reasonably then and there so appeared to the defendant, taking into consideration his knowledge, if any, of the character and disposition of the deceased, then the defendant had the right to interfere and prevent deceased from entering said room or from making such an assault on Maggie Ross or said child, or either of them."
Appellant swore that soon after deceased came to his home on the night of the homicide, he inquired for his wife and was told by appellant that she was not feeling well and had retired early, whereupon deceased went to the door of his wife's bed room, kicked on it and called to her and told her if she did not open the door he would kill her; that fearing deceased would hurt his wife and son he took hold of deceased and tried to get him to not disturb his wife; that deceased drew a knife and told appellant that it was none of his business; *Page 527 that deceased then went down a hall and into another room from which a door opened into his wife's bed room, which door however was also closed and locked; that he followed deceased and was watching from the hall-way; that as deceased was about to force said door, he observed appellant and with an oath demanded to know why appellant was following him and threatened to kill appellant; deceased then came toward appellant and picked up from a mantel a small bust of Scott and threw same at appellant striking him on the hand; that deceased then again threatened to kill appellant and drew his knife; appellant grabbed the arm of the hand in which the knife was and the two men scuffled around in the hall, jerked loose from each other and deceased went into the dark dining room behind which was a kitchen opening on a back porch on which porch was a shotgun; appellant said, believing that deceased was going to get this gun to kill him with, he ran into the southeast room of the house to a drawer in which was a pistol, got the pistol, came back out in the hall and fired into the dark dining room into which deceased had gone. As stated above, officers who arrived in a few minutes found deceased on the floor of this dining room, shot.
Examination of the charge discloses that nothing therein gives the jury any light upon the right, if any, of appellant to do anything to prevent any assault by deceased on Mrs. Ross. This, according to appellant's claim, led him to do and say those things which caused the assault by deceased with the bust, also the drawing of his knife, and induced belief on the part of appellant that deceased was purposing to continue the assault upon him by getting a gun and shooting him. Whether these things actually so transpired was for the jury under all the facts in evidence, — but for the purpose of determining the law applicable to the defensive theories the court could only look to the defensive testimony and be bound thereby.
The jury were called on to determine whether the shooting was upon malice, or under circumstances reducing to manslaughter, or in self-defense. What was done and said by the parties immediately before the shooting became its antecedents and may have created the mental attitude which would give character to the homicide as being upon malice, or upon sudden passion, or in self-defense. Whether one who embarks on a given enterprise be wrong or has some right on his side in the beginning, might give color to conflicting theories as to his subsequent acts and conduct. One who arms himself fearing danger and seeks an explanation, in a proper case has the right to have the jury told that the fact that he do so arm himself would not deprive him of his right of self-defense, else the fact that he went armed to where his adversary was, might of itself be given harmful effect by the jury.
Analysis of the requested charge above quoted indicates that its purpose was merely to inform the jury as to appellant's right to do *Page 528 what he claims he did in the initial part of the transaction, i.e. to interfere and prevent deceased from entering the room of Mrs. Ross, provided appellant knew that the purpose of deceased was to assault her, or if it reasonably appeared to him from what occurred and from his knowledge of the character and disposition of the deceased, that such was his purpose. In the absence of some such instruction as that under discussion it is easy to see how appellant's admitted interference with the effort of deceased to get into his wife's room, might have been given harmful effect by the jury. Men, on the jury or off, are prone to look with ill-favor on acts of other men who meddle in the domestic affairs of others without right, and in debatable cases are apt to let the natural prejudice against such conduct turn the scale against the outsider. It seems to us that this is especially true in a case where the State places dependence on the theory of illicit relations between the accused and the woman in whose behalf he claims to have acted; or where it is asserted that there was a conspiracy between said woman and the accused to bring about the death of her husband. The requested charge does not seek to set forth any right of acquittal on the ground of defense of the woman and as we understand it is confined to an announcement of the right of appellant to prevent deceased from entering the room of Mrs. Ross if he knew or had a reasonable ground to believe that the purpose of deceased in such entry was to unlawfully assault her. To this extent we believe the charge should have so informed the jury and that in failing to so instruct them or to give the requested instruction there was error. What we have said is predicated upon the necessary assumption by the court that the accused was telling the truth in his narration of what occurred. The question as to whether he was in fact telling the truth and whether these facts correctly represented the transaction, was one for the jury's determination.
Appellant complains of the refusal to allow Uffie McLean, a niece of Mrs. Ross, to testify that before the killing she and appellant discussed with a lady whom they met at a beauty parlor, the fact of their engagement and advised with her as to their marriage. The pertinence of such testimony is urged on the ground that the fact of such engagement would shed light on the reasons which caused appellant to become an inmate of the Ross home, and to some extent combat the effect of the State's testimony and its theory that illicit relations between appellant and the wife of deceased influenced him in committing the homicide. We are referred to the trial court's qualification of the bill of exception presenting this complaint and are there referred to the statement of facts. From same we nowhere learn that appellant was engaged to Uffie McLean when he went to board at the Ross home. Both testified as witnesses and neither affirm such engagement. It does not appear from the testimony that appellant went to said home remotely influenced by any engagement. *Page 529
There was no error in the rejection of the statements made by appellant and Uffie McLean concerning their engagement to the lady whom they saw at the beauty parlor. Miss McLean testified without objection that on January 26th she and appellant became engaged. Appellant also without objection testified that before this killing they became engaged. No effort was made by the State to prove statements made by either which in terms or effect were contradictory to their claim that they were engaged, nor are we able to agree with appellant that the State denied such engagement. As far as we learn from the facts the State may have asserted that the fact of such claimed engagement on January 26th formed some basis for belief on the part of appellant on February 4th following that he had a right to prevent deceased from entering the room occupied by Mrs. Ross. The rule discussed by the authorities cited by appellant in support of this contention is in nowise doubted or combated by us. One whose statements in evidence are attacked either by proof of other variant statements or by proof of facts suggesting that such testimony results from a corrupting influence, may be sustained by prior similar statements made before those at variance with his testimony or before the approach of the suggested corrupt influence. We are unable, however, to see any application of the rules laid down in these authorities to the facts of the instant case.
Complaint is made that certain testimony of one Ruiz was not allowed. Same appears to have been offered to show the friendly attitude of appellant toward the deceased and his intercession with Mrs. Ross to let deceased come to his home. Among other things, the bill states that Ruiz would swear that he went with Ross to the house and asked Mrs. Ross to let deceased come in and lie down, that he had a headache; that appellant took part in the conversation and advised and urged Mrs. Ross to let deceased in and interceded for him, and at the same time said to deceased, "Uncle John, I don't want you to come in and treat mama like you did the other day," and further said to Mr. Ross, "I don't want to see anything like that," and that Mr. Ross said, "No, no, I won't do nothing, I want to go in and lie down." That Mrs. Ross let deceased in the house and Ruiz went back to his home. A statement by appellant or Ruiz either, that appellant advised and urged Mrs. Ross to let Mr. Ross in and interceded for him, would plainly call for conclusions and opinions and not for facts which might have been admitted or rejected at the discretion of the trial court without serious effect. The statements attributed to appellant by Ruiz, as set out in the bill of exceptions and quoted above, do not seem to evidence any intercessory effort on his part with Mrs. Ross. We perceive no error in the rejection of testimony of such statements made by appellant. *Page 530
For the purpose of showing the violent character of deceased and his treatment of his wife, appellant introduced the testimony of a Mr. Rogers who boarded at the Ross home about a year before this killing, and who testified that on the third night of his stay at the house he awoke about one o'clock a.m. and heard a man's loud voice cursing. Witness thought it a family row and went back to sleep. On cross-examination he testified to a conversation with Mrs. Ross next morning as follows:
"She stated, just asked me if I heard her husband that night when he came in, as near as I remember the conversation and I told her I did. And she said, `Well, there is no use to be alarmed, because he is harmless' or something to that effect. I would not say positively just what the words she used, but I inferred from the remarks I need not be disturbed because probably it was a regular occurrence and was not unusual."
On re-direct examination this witness testified that Mrs. Ross said that Mr. Ross was staying out on the farm and was likely to come in at any time and would probably be intoxicated, and for witness to pay no attention to him. It is insisted that to put before the jury a statement from Mrs. Ross that deceased was harmless, was very hurtful to the defense herein. To attribute to witness the statement in terms that Mrs. Ross said her husband was harmless, is going beyond the record. The witness declined to affirm the exact language used by Mrs. Ross but stated that what was said by her was to the effect that what had taken place the night before was a regular occurrence and not unusual. Certainly, judged by this standard, the complaint is without merit.
It is contended by several bills of exception that statements made by deceased after the shooting, admitted as res gestae, were not admissible. Carlson, who came with the ambulance and rode in it with deceased to the hospital, testified to statements made by deceased on the way. The main point in such case would be the spontaneity or instinctiveness of such statements, in determining which we would take into consideration the time and other circumstances to a greater or less degree. Bradberry v. State, 22 Texas Crim. App., 278; Bronson v. State, 59 Tex.Crim. Rep.. Statements to be res gestae need not be made at the same time if they reflect a continued expression of the facts surrounding the transaction expressing themselves through the party making the statements. McGee v. State, 31 Tex.Crim. Rep.. As we can best arrive at it, from the testimony of the various witnesses, the time of the shooting was near 9 o'clock p.m. The ambulance was phoned for as soon as the officers reached the premises, which was from three to five minutes after the shooting, according to the testimony. Mr. Cook, driver of the ambulance, said that from the time he received the call to come to the home of deceased, *Page 531 till he had him at the hospital, was fifteen or twenty minutes. So much for the time feature in determining the admissibility of the statements in the ambulance as res gestae. Deceased was shot through the body, the intestines being perforated in eight places and an artery pierced. Carlson said that deceased was bleeding on the way to the hospital and seemed to be in pain; that he would reach out with his hands for the wall of the ambulance, and repeated ten or fifteen times, "Oughtn't to shoot a man in the back." That he was shot in the back was not denied. From the standpoint of res gestae, we entertain no doubt of the admissibility of such statement.
Bill of exceptions No. 18 complains of the testimony of Sheriff Miller as to a statement made by deceased while on the operating table at the hospital. We have carefully scrutinized the testimony as to the time element involved in determining the admissibility of this statement and think it to have been made well within two hours after the shooting. That the deceased was suffering from a mortal wound and in great pain, is clear. In Freeman v. State, 91 Tex.Crim. Rep.; 239 S.W., Rep., 969, we cited many authorities in support of the following proposition:
"Many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far enough to preclude premeditation and in cases of this kind we have declined to be limited to any specific time. Tooney v. State, 8 Texas App., 459; Stagner v. State, 9 Texas App., 441; Fulcher v. State, 28 Texas App., 471, 13 S.W. 750; Lewis v. State, 29 Texas App., 201,15 S.W. 642, 25 Am. St. Rep., 720; Castillo v. State,31 Tex. Crim. 145, 19 S.W. 892, 37 Am. St. Rep., 794; Moore v. State, 31 Tex.Crim. Rep., 20 S.W. 563; King v. State,34 Tex. Crim. 237, 29 S.W. 1086; Freeman v. State,40 Tex. Crim. 545, 46 S.W. 641, 51 S.W. 230; Chapman v. State,43 Tex. Crim. 328, 65 S.W. 1098, 96 Am. St. Rep., 874."
We think the statement of Sheriff Miller res gestae under this rule and the facts above stated. In our view, one shot through the body near 9 o'clock p.m., as this man was, unable to move himself or speak audibly when officers reached him within probably ten minutes after the shooting, suffering as he is carried to a hospital so that he repeats some phrase over and over many times, placed on an operating table where he was operated on at about 10:30 or 11 o'clock, and while still suffering makes a statement otherwise admissible, which is admitted by the trial court on the ground of res gestae, we should not hold it reversible error, if erroneous at all. Complaint is also directed at these statements upon the ground that they were not statements of any fact and were no more than an opinion or conclusion of deceased. In Clark v. State,56 Tex. Crim. 293, we held admissible as a res gestae statement that one said that he shot in self-defense. That *Page 532 "He shot me for nothing," and in "cold blood," etc., have often been held admissible by this court. Numerous authorities are collated to this effect in the opinion in Davis v. State,83 Tex. Crim. 539, 204 S.W. Rep., 655. See also Woods v. State, 87 Tex.Crim. Rep., 221 S.W. Rep., 278; Finley v. State, 92 Tex.Crim. Rep.; 244 S.W. Rep., 526; Couch v. State, 93 Tex.Crim. Rep.. In Sims v. State, 36 Tex. Crim. 165, we held admissible a statement of deceased as follows: "Sims ought not to have shot me." We perceive no error in the admission of the statements from either angle of objection.
Appellant objected to the statement of deceased as testified to by officer Cloud that shortly after the shooting and while deceased was lying on the floor of the room where he was shot, he said: "I guess I am to blame, they don't want me here." The entire statement thus made is here presented as erroneous in one bill of exceptions. It seems well settled that in case there be matter partly admissible and partly not and objection is made to the whole and it is so passed upon by the trial court, we will hold such a bill to present no error. Martin v. State,80 Tex. Crim. 275, 189 S.W. Rep., 266, and authorities there collated. Manifestly that part of said statement in which deceased said: "I guess I am to blame" would not be held objectionable. However, we are not inclined to think any part of said statement objectionable. If we comprehend this entire record from beginning to end it abounds with incontestable evidence of the fact that deceased was not wanted at his home. Appellant testified that he had reminded deceased that he had been enjoined from coming to the premises. Appellant also admitted that on the afternoon of the homicide and not very long before same occurred, he and Mrs. Ross, upon seeing deceased on the street, came together to the courthouse and interviewed the officers with a view of having them prevent deceased from coming to the house, and the record reflects the fact that appellant said at the time to the officers that if deceased came to the house that night there would be trouble. We further observe that as far as we can gather from the record deceased was permitted to lie in the dark dining room where he was shot by appellant until after the officers arrived upon the scene. They went into the dining room and turned on the light and found him lying on the floor shot through the back. They procured for him a pillow and he said to one of them that he wanted to speak to his wife if he was going to die, and one of the officers called Mrs. Ross and she came and stooped over him and said, "Honey, you oughn't have done it" and raised up and walked away, and it was after this that deceased made the statement here complained of. It was objected to as an opinion expressed by deceased that contained no fact. Mr. Branch in Sec. 131 of his Annotated P.C. refers to many authorities as supporting the proposition *Page 533 that an opinion, in so far as it consists of a statement of an effect produced upon the mind of the party uttering it, becomes primary evidence, and hence admissible whenever the conditions are such as that they cannot be reproduced and made palpable in the concrete. As a matter of course we cannot know all the things that operated upon the mind of the deceased which induced him to make the statement. Apparently he had been shot within a few minutes after entering his own home, and had then been left by himself lying in his own dining room without light or assistance of any kind until the officers arrived. When his wife came in answer to a request from him to talk to her, she reproved him for something that he had done and left him. He knew that he had been enjoined from coming to the premises. Many other facts appear in testimony, among which we observe that appellant, in answering a question on cross-examination in reference to deceased, stated, "It was not his household, he had been run away." We do not think the bill of exceptions presents any error. The statement attributed to deceased was the expression of what was on his mind as the effect of the circumstances, and was a shorthand rendering of facts.
The testimony of officer Stubbs that when he told appellant to put on his clothes and go to the station and the latter went into a room to dress, Mrs. Ross made two efforts to get into the room where appellant was, seems well within the rule governing res gestae acts and statements of co-conspirators. These rules seem to admit testimony of acts and statements of co-conspirators after the consummation of the conspiracy if connected therewith closely enough to be res gestae. Phelps v. State, 15 Texas Crim. App., 55; Tillery v. State, 24 Texas Crim. App., 273; Weathersby v. State, 29 Texas Crim. App., 307; Martin v. State,44 Tex. Crim. 281; Eggleston v. State, 59 Tex.Crim. Rep..
We deem the testimony relative to the acts and conduct of appellant and Mrs. Ross, at the office of the United States Marshal, and at the jail subsequently, and that she called him "sweetheart" at her home on the night of the shooting, admissible as circumstances showing and tending to support the theory of a conspiracy between appellant and Mrs. Ross. Mrs. Ross had become involved and owed penalties to the Federal government for violations of the liquor laws. The extent of this obligation was considerable. It was shown that shortly after the killing she took into her possession and disposed of considerable property. The testimony of the appellant as given upon the stand is replete with numerous details of matters which would not ordinarily seem to be related by a landlady to a boarder in her home. The acts and conduct of appellant and Mrs. Ross in the premises were such as to tend to support said theory. In such case we think it proper for the State to search every legitimate avenue to ascertain the motive *Page 534 and to turn on all the light possible upon the relations of the parties involved.
We have carefully gone through the able brief of appellant's counsel and his supplementary brief, and have considered at length the various contentions made, as well as the brief for the State, and are constrained to believe the error of the charge mentioned such as to call for reversal, and it is so ordered.
Reversed and remanded.
ON REHEARING. June 4, 1924.