Appellant insists that the language of the dying declaration, set out in Bill of Exception Number Six, wherein deceased said that appellant "took and marched me up to the house," was the expression of an opinion and a conclusion of the deceased and was therefore inadmissible. As supporting this contention, appellant takes the position that the word "marched," as there used, conveys the idea that he forced the deceased to accompany him to the house.
If appellant's version be accepted, yet same would not be inadmissible as a part of the dying declaration but would constitute a shorthand rendition of the facts. Fleming v. State, 101 Tex.Crim. R., 274 S.W. 616; Gilbreath v. State, 124 Tex.Crim. R., 63 S.W.2d 560.
Appellant insists that we misinterpreted the ground of his complaint, as evidenced by his Bill of Exception Number Eight and that quite a different question was presented by that bill when viewed in the light of the trial court's qualification thereto.
This requires a re-discussion of the bill at length.
It is noted that in qualifying this bill of exception, the trial court refers to the statement of facts for a review of the matter here presented. In other words, the trial court makes as a part of his qualification to the bill all the facts touching upon the question there presented.
It was the State's theory that after the killing, appellant fled in an automobile and was shortly thereafter arrested by the officers. Such testimony was offered by the State for the purpose of showing flight.
Appellant explains this conduct on his part, upon his direct examination, to the effect that he was at that time on his way to Fort Worth to contact friends to go his bail. He denied that he was running away or avoiding arrest.
Upon cross-examination the appellant, over his objection, was required to testify:
"I didn't go up there and call on these officers and tell them what happened, that I had shot Junius Washington, because he *Page 228 was trying to jump on me, — I did not report it to anybody in Mineral Wells; I was afraid, excited."
It is of this testimony that complaint is made in Bill of Exception Number Eight.
In our original disposition of the case we treated the cross-examination referred to as being admissible as against appellant's explanation of the testimony showing flight on his part. Appellant insists that had the cross-examination gone no further than that, then the disposition made by us on the question would be correct but he insists that the matter went much further and had the effect of requiring him to admit before the jury that he did not, after the killing, report to the officers at Mineral Wells and explain to them not only the fact of the shooting but also that he shot in self-defense.
So, according to appellant's contention, the question presented by this bill of exception, in its final analysis, amounts to proof of the fact that appellant, after the killing, did not report to officers at Mineral Wells and in that report tell them of his justification which he claimed in the killing.
We have reached the conclusion that the State was authorized to so cross-examine the appellant upon his defensive theory and that such conclusion finds support in the case of Edwards v. State, 135 S.W. 540, 61 Tex.Crim. R.. In that case, the accused was, upon cross-examination, interrogated as to his conduct from the time of the killing up until he surrendered to the officers and, among other things, asked whom, if any one, he told about the killing. In holding such to be proper cross-examination, we said:
"A defendant who takes the witness stand in his own behalf assumes the character of a witness, and is subject to the same treatment as any other witness. If he puts himself on the stand in his own behalf, he renders himself liable to be cross-examined upon all the facts relevant and material to the case, and cannot refuse to testify to any facts which would be competent evidence in the case, if proved by other witnesses. * * * Appellant testified that he shot deceased in self-defense; that from the acts and conduct of deceased he believed his life was in danger. Any witness on behalf of defendant, who had testified to conduct rendering the defendant justifiable, would be subject, on cross-examination, to examination about when he first told the facts, and if when he was testifying was not the first time he had ever made such a statement. It was permissible on the part of the *Page 229 state to show that defendant prior to his surrender and prior to his trial, had never told any one that he acted in self-defense, and that, opportunity offering, he had not told his brother."
Believing the original disposition of the case was correct, the motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.