In a very forceful and persuasive motion for rehearing and oral argument, State's counsel insists that the court was not authorized to reverse the judgment of conviction.
On the question of the sufficiency of the evidence to support the conviction of the appellant for murder, it is difficult to reach a conclusion. The announcement of this court seems misconstrued. The court did not decide that the deceased was shot by accident. No right to determine as a fact that the shooting was accidental is possessed by this court. The evidence is such as to leave the minds of the members of this court in doubt upon the subject. Such was the idea which the opinion on motion for rehearing was intended to express. As the record is read, a most potent circumstance against the accused is his failure to testify in his own behalf. While the statute declares that such fact shall not be considered against the accused, obedience to the statute in that particular is almost impossible, even for the members of this court. It is especially so with the members of the jury. In Art. 710, C. C. P., 1925, it is said:
"The failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause." *Page 180
That the argument of counsel for the State upon the trial of the case was so worded as to direct the minds of the jury to the failure of the accused to testify is made manifest by the bill of exceptions. The language used was subject to the interpretation mentioned and was doubtless so regarded by the jury. The language imputed to State's counsel is not in question. The bill sets it forth and its accuracy is vouched for by the certificate of the judge. As stated in the previous opinion, the objection made to the argument, as shown by the judge's qualification to the bill, was not deemed sufficiently specific to justify this court in reversing the case because of the argument alone. The making of the argument and its tenor and purport was rightfully made evident to this court by the bill of exceptions, and as stated above, the fact of the accused's silence alone, without comment or allusion, is one that both the untrained and trained mind finds it difficult to ignore. The evidence is meagre concerning the immediate incidents of the homicide, and very meagre touching any motive therefor. The shot may have been fired purposely and yet the offense be less than murder. On the whole case, there is such doubt entertained whether the evidence given by the witness was such as would overcome the presumption which the law prescribes favorable to the accused and establish beyond a reasonable doubt his guilt of the offense that we are constrained to resolve the doubt in favor of the accused to the end that he may have another trial. It is not to be implied that if another jury should find the appellant culpable that the verdict would be annulled on appeal.
Supplementing the announcement made in the original opinion relating to an attempted impeachment of a statement received as res gestae, by proof by hearsay, of a subsequent statement of the deceased, it is deemed expedient and proper to add the following remarks:
The term "res gestae" came into the law of this state by act of the Congress of Texas in 1836 and is now embodied in Art. 3713 of the Revised Civil Statutes of 1925 adopting the common law of England applicable to the rules of evidence. We learn from text-writers that limitations upon the application of the term of res gestae have never been satisfactorily prescribed. See Wigmore on Evidence, 2nd Ed., Vol. 2, Sec. 1767. At the time our statute upon the subject was adopted, the application of the term was far more restrictive than at present. See Greenleaf on Evidence, 13th Ed., Vol. 1, p. 129, Sec. 108. *Page 181
In Wharton's Criminal Evidence, 3rd Ed., Vol. 1, p. 490, sec. 262, it is said:
"Res gestae are events speaking for themselves, through the instinctive words and acts of participants, but are not the words and acts of participants when narrating the events. What is said or done by participants under the immediate spur of a transaction becomes thus part of the transaction, because it is then the transaction that thus speaks."
In the editor's notes in the volume last mentioned it is said:
"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 cases would be of no value as to the limits set for res gestae. . . . 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."
Due to our radical departure from the former application of the rule, there might be presented a case where an alleged res gestae statement was so remotely connected with the main transaction and so immediately connected with the statement offered to impeach it as to make the latter admissible. The law pertaining to this question is so unsettled and so unsatisfactory that we feel unable and unwilling to state a rigid rule. Cases differ so widely in their facts, and in their interpretation that precedents on the subject are of little value. As the facts of each case must determine the admissibility of res gestae statements, so must they determine the admissibility of testimony to impeach same. It is thought that the original opinion states the correct general rule, especially as it anciently existed, and properly applies it to the present facts. Under the modern trend of authorities, however, there may be presented a state of facts to which it could not be safely applied.
The motion for rehearing by the state is overruled.
Overruled. *Page 182