In upholding the ruling of the trial court in excluding the proffered testimony of the witness Black communicating to the appellant the information of a threat made by the deceased to one Rogers, we fell into error. According to the testimony offered, the deceased made a threat against the appellant to *Page 50 Rogers. Rogers told Black and Black told the appellant. It is true that this was hearsay, but it apparently came within an exception to the rule excluding hearsay testimony. Mr. Wharton, in his work on Criminal Evidence, uses this language:
"Whenever it is material to ascertain the condition of a party's mind at a particular time, statements made to him which account for his attitude are not excluded because they are hearsay. Thus, threats by A towards B are hearsay when repeated by a third party; yet when B is on trial for an injury done to A, as he alleges in self-defense, it is admissible for him to prove that these threats were communicated to him by such third party. So, a belief in the community that A is a man of great ferocity is admissible in the same issue on B's behalf. When the state of a party's mind is at issue, those communications made to him which may account for his conduct are admissible, though hearsay." (Wharton's Crim. Ev., Vol. 1, Sec. 257.)
The purpose of threats in homicide cases is two-fold. First, to show the design of the deceased to do violence to his slayer. When the circumstances render the threats relevant for this purpose, it is not necessary that they be communicated to the accused. Wigmore on Evidence, Vol. 1, Sec. 110; Branch's Ann. Tex. Penal Code, Sec. 2079. When not communicated, doubtless, the proof of the threat should come from one who heard it uttered by the deceased. Communicated threats, however, illustrate not only the design of the deceased but the state of the mind of the accused relating to his apprehension of danger from the deceased. Wigmore on Evidence, Vol. 1, Sec. 247. In dealing with communicated threats, the inquiry is not whether the threats were uttered but whether the accused was informed that they had been made. Branch's Ann. Tex. P.C., Sec. 2085. It is conceived that when he received this information, he may prove it on the trial though it did not come immediately from the person in whose presence the threats were made. This was the holding of this court in the opinion written by Judge Ramsey in the case of Morgan v. State, 54 Tex.Crim. Rep.. One may act upon reasonable appearances of danger. Penal Code, Art. 1109. And it is from his standpoint at the time that the matter must be judged. Brumley v. State, 21 Tex.Crim. Rep..
"If the accused had reasonable grounds for believing, and did believe, that the deceased was a dangerous man, the source of his information or belief is altogether immaterial." (Childers v. State, 30 Tex.Crim. Rep..)
We believe this correctly states the principle upon which the evidence of communicated threats is received and that in applying it to the instant case, the testimony that the appellant had been told by Black that the deceased had made threats against him to Rogers should not have been excluded, but that the jury should have been permitted to determine therefrom and from other evidence before *Page 51 them the state of the appellant's mind at the time he killed the deceased.
The motion for rehearing should be granted, the affirmance set aside, and the cause reversed and remanded. Such is the order.
Reversed and remanded.
ON REHEARING. March 14, 1923.