Latham v. State

On a former day of this term this case was affirmed, Judge Davidson at that time dissenting, he stating in the memorandum attached to the opinion that "there was error in regard to admitting evidence of the erasure of the name on the hotel register, and in the bills in regard to the witnesses Bynum and Lockwood." At the request of my associates I have taken the record and read and studied it carefully and thoughtfully, the able and exhaustive briefs filed by counsel for appellant and for the State, as well as the motion for rehearing filed herein.

In the beginning I want to state that the caustic remarks of appellant's counsel in the motion for rehearing are wholly uncalled for. In the motion for a new trial, and in the brief, it was contended: "The defendant prays the court to grant her a new trial herein because the verdict of the jury is contrary to the law and the evidence in this: That the great weight of the testimony in this case shows clearly and conclusively that the defendant, Minnie Latham, when she shot the deceased, John Y. Stewart, shot in her own self-defense, and this testimony of the witnesses is supported and confirmed by the course of the wounds in the body of said John Y. Stewart which show conclusively that the deceased could not have been shot from behind while sitting down on the sidewalk as sworn to by one of the State's witnesses; that all of the testimony in this case with the exception of three witnesses shows conclusively that the deceased, John Y. Stewart, was standing up on the sidewalk when he was shot and was not sitting down."

In the motion for rehearing in this court there are but four grounds assigned, three of them being the grounds upon which Judge Davidson dissented, and the fourth being: "Appellant would show to the court that this court erred in overruling appellant's assignment in her motion for a new trial, wherein she alleged that the evidence was insufficient upon which to justify and sustain a conviction. The court overruled said assignment and upon doing so the majority opinion makes a large summary of the evidence in the case. None of the testimony of appellant and none of the testimony of appellant's witnesses are included in said summary, but, upon the contrary, a summary of the State's testimony alone is included in the opinion and the deductions drawn are the strongest that could possibly have been made under any phase of the testimony of any of the witnesses."

Thus it is seen that the proposition was presented that the evidence would not sustain the verdict. Counsel evidently overlook the fact that in passing on the sufficiency of the testimony to sustain a finding of the jury — the verdict — that it is the duty of this court to take the evidence offered in behalf of the State, and look to that to see whether or not, if the jury find it to be true, it will sustain their finding. In passing on whether or not a certain issue is raised, when an appellant contends it was, we look to the testimony offered by appellant, and state the evidence as contended by appellant. We have, as stated, re-read the entire record, and are of the opinion that the evidence offered by the State authorized a finding by the jury of the issues as stated by Presiding Judge Prendergast, and that counsel's criticisms are unwarranted, and evidently made in the heat of passion. We can understand that counsel may become thoroughly convinced that the version of their client presents the correct theory, but this belief of theirs is not binding upon the jury, and should not and will not be binding on this court. In the original opinion nothing was stated as facts, but it was merely stated that the jury under the evidence was authorized to conclude and find the facts as stated, and we again so state, and overrule this ground of the motion for rehearing.

It is next contended that we erred in holding that the court did not err in permitting the hotel register to be introduced in evidence. We adhere to the ruling made on this issue. The State desired, in making its case, to prove that when appellant went to Snyder she registered at the hotel under an assumed name — Mrs. C.C. Everts. That it was permissible to prove this fact is not questioned by appellant. Now what would be the best or primary evidence that she had registered under the name of Mrs. C.C. Everts? There can be no question that the register of the hotel would be the best evidence of that fact. This, as we understand the record, is not denied by appellant, but appellant contends that as she was willing to permit that fact to be proven by secondary evidence, it was error to permit the State to prove that the primary or best evidence had been destroyed before offering secondary evidence to prove that fact. Had the defendant objected to this secondary evidence, there can be no question that the State would have been required to prove the loss or destruction of the primary evidence (the register) before the secondary evidence would have been admissible. Wharton's Crim. Ev., sec. 198b, says: "The fundamental rule underlying all legal proceedings is that the best evidence of which the case is capable must be first produced." This rule is approved by this court in Porter v. State, 1 Texas Crim. App., 394, quoting from 1 Greenleaf on Ev., sec. 82. Mr. Wharton also says: "The facts concerning the absence of the primary evidence may be shown by parol testimony; parol evidence is admissible to prove the contents of documents that have been lost or destroyed, it having been first made to appear to the court that such documents existed, and that efforts have been made in good faith to produce them in court." Sager v. State, 11 Texas Crim. App., 110; Haun v. State, 13 Texas Crim. App., 383. In this latter case the question is discussed and authorities cited, and we think this rule not only is established by all the decisions of this court, but by all elementary writers as well. Appellant, as we understand it, does not question this rule, but claims as she was willing to admit the secondary evidence without proof of the destruction of the primary evidence, that the State ought not to have been permitted to prove its destruction. Admissions of counsel do not always bind a defendant, as shown by a number of decisions of this court. (Nells v. State, 2 Tex. 281; Bell v. State, 2 Texas Crim. App., 215; Clayton v. State, 4 Texas Crim. App., 515; Murnutt v. State, 68 S.W. Rep., 634.) While we would not question the fact that the able counsel representing appellant would have lived up to the agreement in this case, yet in the past, in certain other cases, after conviction, new counsel has been employed who did raise such questions, and we have felt impelled to reverse the cases as shown by the above cited cases. And if counsel for the State did not care to rely on the admission or agreement of counsel for the defendant in this case, but preferred to show the destruction of the primary evidence to render admissible their secondary evidence of this fact, the State certainly had the right to do so, and the court did not err in so holding. The fact that State's counsel did not desire to prejudice defendant by making such proof is evidenced by the record, for they stated in the presence of the jury that they could not and did not seek to connect her with the destruction of the record, and the further fact that when appellant voluntarily took the stand and admitted that she had registered at the hotel under the name of Mrs. C.C. Everts, the State agreed that the court should instruct the jury not to consider the evidence adduced of the name being erased from the register. The evidence being admissible there was no error in admitting it, and certainly none in permitting it to be withdrawn as it was legitimately and legally in evidence. The fact that such evidence was hurtful to defendant would not render it inadmissible. All evidence offered in behalf of the State will more or less have that effect.

In another ground it is claimed that the court erred in holding there was no error in permitting the cross-examination of the witness Joe Lockwood, it being contended that such cross-examination tended to impair the credit to be given the testimony of the witness introduced in behalf of defendant. What is a cross-examination for but to test the credibility to be given the testimony of a witness? The testimony of this witness shows that he voluntarily went to defendant's counsel and informed them of the facts he could and would testify to in behalf of appellant, and it is complained that the court erred in permitting it to be shown that he did not voluntarily also go to State's counsel and tell them what his testimony would be. This fact would clearly show the interest and bias of the witness, and there was no error in admitting it. Earle v. State,64 Tex. Crim. 537, 142 S.W. Rep., 1181; Pope v. State,65 Tex. Crim. 51, 143 S.W. Rep., 611, and authorities there cited. See also Branch's Crim. Law, sec. 861, where the rule is stated to be, that the interest or bias of a witness is never a collateral or irrelevant inquiry, but may always be shown. In this case when it appeared that the witness had voluntarily gone to defendant's counsel and told them what his testimony would be, the fact that he had not gone to State's counsel also and told them would clearly tend to show the interest he felt in defendant, and his bias in her favor. Appellant cites us to the case of Roberts v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 651, and cases there cited as sustaining his contention. But by a careful and thoughtful reading of those cases it will be seen that the testimony objected to was sought to be introduced in those cases to impeach the witness — the testimony offered would not and did not tend to show the interest and bias of the witness. In this case the testimony was not offered to impeach the witness, nor would the testimony adduced have that effect, but it was offered and introduced to show the interest Lockwood had in the case, and his bias in her favor, and it would have a tendency to so show, and it was admissible for that purpose, and this ruling in nowise conflicts with the holding in the Roberts case, supra, and other cases cited in that opinion and relied on by appellant.

The only remaining question assigned in appellant's motion for a rehearing relates to the exclusion of the testimony of the witness Sterling Bynum. This witness testified that he was coming up the street going east, when he saw deceased on the sidewalk just ahead of him; that witness was some fifteen or twenty steps behind him. He then says: "The first thing that I saw, I saw this woman raise her veil with her left hand, and then at that time she was pulling the gun out and he throwed his hand up, his left hand up that way (indicating). He had his hands in front of him like this and he was either at the time whittling or cleaning his finger nails; he throwed this left hand up and dropped his right hand down and when this hand got to about there, it looked like, then the gun fired. Yes, sir; he threw his right hand down. He throwed his right hand down to about his belt, that is where he had his right hand at when he started falling. As to which I saw the first, the man's hand dropping to his side or the lady drawing the gun, will say that they both happened at the same time. Yes, sir; that man that got shot was walking on the sidewalk there, he was not sitting down on the sidewalk at all. Right after the shooting this man that was shot stumbled off of the sidewalk, and fell down or around someone and caught around their legs and she shot him then a time or two again. When he made the motion up with his left hand like I have indicated there was a knife in his left hand, right at the time of the shooting. I would think that the woman and the man at that time were something like three or four feet apart; about that close together when the knife went up in the left hand. The knife when I noticed it in his left hand was open, and I did see the blade of the knife as he threw his left hand out. Yes, sir; at the time of the first shot the lady was nearer to the building there than the man. I could not say just how close that knife would come to that woman when he threw his hand out that way with the knife in it; but I would think that the knife come pretty close to her."

This testimony was very material to her defense — that she shot deceased in self-defense. The testimony was admitted without question, but when the defendant desired to go further and ask the witness, after he had testified "he (deceased) threw his right hand down" — "What did you think he was doing with his right hand?" This question was objected to, and the objection sustained. The bill further shows that the witness would have answered, if permitted to do so, "that the act and conduct of deceased made the impression on his mind that the deceased was attempting to draw a pistol." The admissibility of this latter statement has given us much serious thought and consideration. If admissible, its rejection was seriously harmful to defendant. She testified that her husband had told her that he could not live with her longer, and they were on their way to Colorado City, and when they arrived there their separation was to be permanent, and the ground upon which he was quitting her was the conduct of herself and deceased; that he, apparently, believed their conduct had been seriously improper. This she denied, and said that in going through Snyder she thought she saw deceased, and got out of the automobile and stopped over there to get the compromising letters she had written, and get a statement from deceased that no improper relations had existed between them. That she did not tell her husband her reason for stopping at Snyder, but told him as he had decided to quit her, he could have no interest in where she stopped; that she did stop at Snyder to see deceased, but not for the purpose of killing him, but to get the letters, and a statement exonerating her from immoral conduct; this statement she desired to get to show her husband. She admits she was there waiting to see deceased, and when she saw him, she went to him with the intention of demanding the letters and securing the statement; that he came meeting her, and then to quote her own language she testified: "Before he got in ten feet of me, I spoke to him. I first said, `Good morning.' He didn't speak, he just gazed me right in the fact, he did not speak. And I spoke again and he snarled at me and turned his head off to one side. I then asked him to stop and he walked on like he didn't hear me. But he had a knife in his hand and he had the knife in his hand when he crossed the street, — I noticed it directly after he got into the street on the other side. I do not know whether he had it in his hand all of the time or not, but I noticed at first it was in his right hand. When he got within about ten feet of me, I asked him to stop, after I had spoke to him twice and he had refused me. I intended then to get those letters and to get a statement from him to give to my husband, and he refused to stop. About the same time he changed his knife from his right hand to his left, and he dropped his right hand on his gun. I drew my gun. I thought he first intended to use the knife. I then shot him. I do not know, sir, how many times I shot him, my mind is a blank from then on, until I found myself in the sheriff's office. I do not know how many times I shot, it might have been a dozen for all that I know. I do not remember anything else about the shooting, I was scared at the time; I know that he intended to do something rash, — and, if he didn't, why did he throw that knife out towards me and put his hand on his gun, — why did he do all of that? As to whether I thought he was going to hurt me, will say that I knew that he was, — I could not help but think it. Yes, when I spoke, he snarled. Yes, sir; as a matter of fact I did think that John Stewart was going to kill me."

It is thus seen that appellant testified that as deceased approached her he dropped his hand on his gun, and it created the impression on her mind that deceased was going to kill her.

Now, if it was permissible for a bystander to state that the acts and conduct of deceased created the impression on his mind that deceased was attempting to draw a pistol, its materiality is apparent, for such a statement would strongly corroborate her testimony, and support her plea that she acted upon the reasonable appearance of danger to herself. The verdict of the jury manifests that they believed that the mind of appellant was agitated and rendered incapable of cool reflection by the acts of deceased at the time, viewed in the light of his previous conduct, but they did not believe that his acts and conduct were such as to cause her to believe that she was in danger of losing her life or suffering some serious bodily harm.

It is contended by the State that it is the impression made on the mind of defendant that would justify her in shooting, and not the impression made on the mind of a bystander or any other person other than appellant. This is undoubtedly the law, and this is the view we took of the case in rendering the original opinion. And right here the writer desires to state that he is as much responsible for this holding in the original opinion as any other member of the court, and that was his view of the question and opinion at the time of the handing down of the original opinion. However, owing to the earnest insistence of counsel for appellant, we have again reviewed this question, and the writer is frank to admit that he is not now so thoroughly convinced that he was right in the original holding. Of course, it is from the viewpoint of defendant, as the circumstances appeared to her, she must be judged, and the impression made on any other person would furnish her no defense. This has been held too often to need a citation of authorities. But when she has testified that from the acts and conduct of deceased at the time she thought he was in the act of drawing a pistol, and that her life was in danger, can her testimony be supported by the testimony of bystanders that the acts and conduct of deceased created the impression on their minds that he was about to draw a pistol? If so, such testimony coming from, apparently, a wholly disinterested source, would have much greater weight and be given more consideration by the jury than when it came from the mouth of the defendant alone. It is contended by the State that such testimony is merely the opinion of the witness, and that opinion testimony is inadmissible, coming from this source on such an issue. Granted, that mere opinion testimony is inadmissible, for it is doubtless true, and the law. But is such testimony merely the opinion of the witness and no more? He would testify that he saw the acts and conduct of the deceased, and such acts and conduct created an instantaneous impression on his mind, and he would testify to what that impression was. Of course, that part of the court's qualification of the bill, "that he was of the opinion that the witness was not in position to give an expression," would go to the weight to be given the testimony and not to its admissibility, and the weight to be given testimony is always a question for the jury trying the case and not for the trial judge. Our Constitution guarantees a trial by jury in all felony cases, and under our procedure the jury is made the judges of the facts proved, the credibility of the witnesses, and the weight to be given the testimony, and under the circumstances attendant upon the case though a judge may believe that no jury would be authorized to give credence to the testimony, yet if a witness is willing to swear to an admissible fact as if within his knowledge, the fact that the judge does not believe the testimony to be true does not authorize him to reject the testimony for that reason alone.

However, the writer would have been inclined to adhere to the original opinion, but for several opinions of this court which are called to our attention and lead us to make a thorough investigation of the authorities. We do not think anyone would concede or hold, that where a person on trial testified to facts showing self-defense as it reasonably appeared to him at the time, it would be permissible for the State to call its witnesses and have them testify that from the acts and conduct of deceased at the time it did appear to them that deceased was about to kill the defendant or do him some serious bodily injury — that no such an impression was made on their minds. Such testimony would be an opinion pure and simple. And if the State can not meet the testimony of a defendant with this character of testimony, it may be contended that the defendant can not strengthen her defense with the same character of testimony and if it be held to be a mere opinion only, doubtless it would be inadmissible. But it seems that the question of the admissibility of this character of testimony in behalf of the defendant has been before this court on several different occasions, and it has been held admissible. In the case of Thomas v. State, 40 Tex. 36, when our Supreme Court had jurisdiction in criminal matters, it was held, "Where a bystander had grabbed the arm of the assaulted party, he was permitted to testify why he did so, — that he `thought Wren (the assaulted party) was going to strike with the tumbler.' This may be deemed strictly an expression of opinion, but it is such an one, arising at the instant, in view of all the circumstances, inducing an act by the witness as may more properly be considered a fact, part of the transaction illustrating the effect likely to be produced by Wren's conduct and manner, which could not be fully expressed and explained in words to the jury. The effect produced on a bystander by the conduct of Wren would illustrate the effect likely to be produced on the mind of the party himself, and we can perceive no good reason why it should not have been allowed."

In Cochran v. State, 28 Texas Crim. App., 422, this court, speaking through Presiding Judge White, held: "Defendant offered to prove by the witness Wilshire, who was standing just to the left of defendant immediately before the shots were fired, that `the reason he (witness) passed from defendant's left side around behind his back to his right side, was that he (witness) expected that deceased would strike at defendant with that billiard cue, and that he feared deceased might miss defendant and hit him.'

"An analogous question is discussed in Thomas v. State,40 Tex. 36, and it was held that such character of evidence was admissible, as tending to explain the effect the acts of the party would likely have produced upon the accused. It was said that `the effect produced on a bystander by the conduct of the party would illustrate the effect likely to be produced on the mind of the accused himself, and we can perceive no good reason why it should not have been allowed.' It was error to reject the evidence."

In the case of Harrison v. State, 25 S.W. Rep., 284, this court held: "Upon the trial the State proved (appellant objecting) that Bob Pierce struck appellant over the head with a chair. Pierce was asked why he struck him, and he answered that he thought that the defendant intended to kill Joe Thomas with the pistol which he was drawing from his pocket, and that he struck him to prevent the killing, etc. The objection was that this called for the opinion of Pierce, and was therefore not admissible. Under the circumstances of this case, we believe the evidence competent."

In the case of Navarro v. State, 24 Texas Crim. App., 378, 6 S.W. Rep., 542, this court, speaking through Judge Hurt, said: "Assuredly, if one receive a blow which leaves an immediate marked impress, that is appreciable by the senses of him who receives it, or that is in a like manner made sensible to bystanders, neither the injured party nor the onlooker need be an expert to qualify him to testify that the injury was the result of the blow given."

Mr. Wharton, in his work on Criminal Law, says: "Impressions which are primary and for which no substituted proof is conceivable, can be put in evidence, whereas an impression which is merely a secondary idea of that of which a more accurate idea is obtainable can not be received."

We were at first inclined to think that the impression made on the witness' mind belongs to the second class and not the first class named by Mr. Wharton. The witness should be permitted to detail the acts of deceased, that he threw his left hand up with a knife in it, and dropped his right hand to his side, and leave the impression these acts would make to be deduced by the jury, but our court seems heretofore to have held otherwise, and hold that such instantaneous impressions made in one's mind by the acts and conduct, came within the first class mentioned by Mr. Wharton, and was a fact and not an opinion. Mr. Wharton, in his work on Criminal Evidence, speaking of this court's rule in regard to such testimony, says: "The Court of Criminal Appeals of Texas has so far departed from the definition in its admission of all facts, circumstances, statements, occurrences, before, accompanying, and after, that, as illustrating the rule, the case would be of no value as to the limits set for res gestae. This court is unquestionably the ablest criminal court in the United States, and its practice as to res gestae is readily explained from the fact that the Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all the evidence before applying the law to the case in hand, and hence admissions as res gestae in the Texas court are not so harmful an application of the rules of evidence as in courts less painstaking with examination of records, and who dwell more upon the strict rules of law." For a list of cases cited, see note 506, page 498, of that work, 10th ed. The rule in this court to permit the witness to depict the scene of a homicide to the jury — to let them see it as it occurred as near as possible, has the approval of a number of authorities.

To the writer's mind, to carry the rule to admit the impressions made on a bystander by the acts and conduct of deceased is extending this rule to the limit, but such rule has the support of eminent authority. In McKelvey on Evidence, section 132, it is said:

"The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence.

"The matters referred to are those of which the mind acquires knowledge by the simultaneous action of several of the senses, so that an impression is produced on the mind which can not be traced to any one fact perceived by a single sense, but a statement of which is nevertheless a statement of a matter of fact. A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, `matter of fact,' as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact as if he testified, from evidence presented to his eyes, to the color of a person's hair, or any other physical fact of like nature.

"This character of evidence is treated in many of the cases as opinion admitted under exception to the general rule, and in others as matter of fact — `shorthand statement of fact,' as it is called. It seems more accurate to treat it as fact, as it embraces only those impressions which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury, in aiding to a clearer comprehension of the facts," citing a number of authorities.

Mr. Chamberlayne, in his work on the Modern Law of Evidence, section 1929, says: "Where the inference is an intuitive one, the mind automatically responding to the stimulus of the sense — impressions, the inference as to mental state is, in main, simply a statement of a fact. It is accordingly accepted by judicial administration as a matter of course," citing, among other cases as upholding the text, Powers v. State, 23 Texas Crim. App., 42, wherein it was held:

"After the State's witness Thornton had detailed what he had seen of the origin of the difficulty, between defendant and deceased, to the effect that Powers, defendant, placed his foot on the foot of deceased, and that deceased remarked in an audible voice that might have been heard thirty feet, `that's my foot you are on,' and then shoved Powers' foot off his, the court, over objections of defendant, permitted counsel for the State to ask the witness: `What was the manner of defendant when he put his foot on the foot of the deceased? Was it done in a jocular manner, or in an insulting manner?' To which the witness answered: `From the defendant's not moving his foot from Eubank's foot when Eubank asked him, I regarded it as an insult.' Defendant's objection was that the question called for and elicited simply the opinion of the witness, and that the witness' opinion was not admissible as evidence.

"Mr. Wharton says: `When we enter upon the discussion of the admissibility of opinion (as evidenced) we strike a topic which is embarrassed by much ambiguity of terms.' . . . `The true line of distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being equivalent to a specification of the facts; but when the facts are not necessarily involved in the inference (e.g., when the inference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involved), then the facts must be stated. In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based. A fortiori, whenever a condition of things is such that it can not be reproduced and made palpable in the concrete to the jury, or when language is not adequate to such realization, then the witness may describe it by its effect upon his mind, even though such effect be opinion.' (Whart., Ev., 2d ed., secs. 509, 510, 511.)

"The same author, in a note to section 512, gives upon this subject nearly the entire opinion in Hardy v. Merrill, 56 New Hampshire, 227, from which we make the following extracts, viz: As a general rule, `opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained.' Again, `in an investigation of mental and psychological condition — because it is impossible to convey to the mind of another any adequate conception of the truth by a recital of visible and tangible appearances; because you can not, from the nature of the case, describe emotions, sentiments and affections which are really too plain to admit of concealment, but at the same time incapable of description — the opinion of the observer is admissible from the necessity of the case, and witnesses are permitted to say of a person, "He seemed to be frightened," "He was greatly excited," "He was angry." All these emotions are expressed to the observer by appearance of the countenance, the eye, and the general manner and bearing of the individual — appearances which are plainly enough recognized by a person of good judgment, but which he can not otherwise communicate than by an expression of results in the shape of an opinion.' (1 Greenl., Ev., 13th ed., sec. 440, and note on p. 494. See, also, Best on Ev., 585; Dill v. State, 6 Texas Crim. App., 113; Richardson v. State, 7 Texas Crim. App., 486; Hardin v. State, 8 Texas Crim. App., 653; Tompkins v. Toland, 46 Tex. 584. See, specially for collation of authorities and an able discussion of the subject, Commonwealth v. Sturtivant, 117 Mass. 122.)"

Wigmore on Evidence says, section 1974: "The opinion rule is often sought to be applied to forbid compendious descriptions of the appearances external indicating internal states — for example, whether a person looked sick, or sad, or angry. The exclusionary rulings perhaps abound particularly in absurdities and quibbles — highly fit for cynical amusement, were not the names of truth and justice involved in their consideration. One may wonder how long these solemn farces will be perpetuated in the law."

The evidence desired to be adduced from the witness was that from the acts and conduct of deceased the impression created on his mind at the time was that deceased was attempting to draw a pistol.

We have given the question most thorough investigation, and have concluded that under the rule announced in the Thomas, Cochran, Harrison and Navarro cases, and which is approved in McKelvey on Evidence and other authorities cited, the testimony was admissible, and as it was on a most material issue, its rejection was hurtful and harmful error.

Under such circumstances the writer is of the opinion that the rehearing should be granted, the judgment reversed and the cause remanded.

Reversed and remanded.