The State has filed a motion for rehearing insisting that we were in error in our original opinion, relying upon the following cases: Parker v. State, 91 Tex.Crim. R.,238 S.W. 943; Porter v. State, 86 Tex.Crim. R., 215 S.W. 201; Williams v. State, 112 Tex.Crim. R., 17 S.W.2d 1057; Upton v. State, 48 Tex.Crim. R., 88 S.W. 212; Chance v. State,125 Tex. Crim. 318, 68 S.W.2d 212; Welch v. State, 143 Tex. Crim. 529,154 S.W.2d 248. We also include Bazanno v. State,60 Tex. Crim. 507, 132 S.W. 777; Archer v. State, 98 Tex. Crim. 91,263 S.W. 305.
The evidence complained of in Welch's case was res gestae of the "litigated act" which was a kidnapping, and made by the victim while still confined and under control of the kidnapper. *Page 408 An examination of the other cases mentioned will disclose that the evidence complained of was admitted under the rule that where a person does any act material to be understood his declaration or explanation of the act made at the time of doing the act expressive of its character, motive or object is regarded as a verbal act indicating a present purpose and intention, and is admissible unless the declaration or explanation impinges upon an issue of self defense asserted by accused where he acts as the situation appears to him as viewed from his standpoint, and the declaration or explanation in question is unknown to him. The declaration so made is sometime referred to in the opinion as "res gestae" of the act, and sometime as merely explanatory of the act, but in the cases mentioned the act in question is testified to by the witness who relates the explanation. Therein, we think, lies the distinction between the present case and those upon which the State relies. If Dr. Hunt had told his wife and guests that he was going out upon the road to meet Mrs. Newton in response to a telephone request from her the point would seem to have been covered by the cited cases. However, we are bound by the recitals in the bills as to what occurred. None of the witnesses, according to the bills, related any such explanation by Dr. Hunt as accounting for his leaving the house, but stated only that he told those present who was calling over the telephone. Dr. Hunt testified that he went to the place of the shooting in response to a telephone call from Mrs. Newton, but nowhere in his testimony do we find that he ever explained to his wife or guests present that he was going out to meet Mrs. Newton.
Under the circumstances disclosed by the bills we think our original opinion properly disposed of the case.
The State's motion for rehearing is overruled.