In his motion appellant lays stress on two points, viz: that the testimony of J. C. Roberts, set out in bill of exception No. 1, should have been admitted; that it was error to allow the state witness Johnson, in re-direct examination, to say that he was separated from his wife, the sister of appellant, because of her immorality.
Appellant seeks to show that the authorities cited in our opinion disposing of the first of these contentions do not support the decision, in that the statements held self-serving in each of said authorities appear to *Page 391 have been deliberate and made to an officer. Nothing in bill of exception No. 1 shows that the statements of appellant to Roberts, which were held inadmissible, were not deliberate, — and the fact that Roberts was not an officer seems to furnish no ground for any distinction between this case and those cited in the opinion. The point at issue was and is the self-serving character of the testimony. Some time during the day before that of the killing appellant said to Roberts: "Otis Pouncey is after me every time I go out to make a delivery, and I am trying to avoid him." The rule generally adhered to in this state is that declarations of the defendant offered in his behalf, which are not res gestae nor relevant to some confession or declaration of his offered by the state, are not admissible. Wood v. State, 28 Texas App., 61, 12 S.W. 405; Giebel v. State, 28 Texas App., 151, 12 S.W. 591; Red v. State, 39 Tex.Crim. Rep., 46 S.W. 408; Medford v. State, 86 Tex.Crim. Rep., 216 S.W. 175. We think the Cole case, 48 Tex.Crim. Rep., 88 S.W. 341, and the Poole case, 45 Tex.Crim. Rep., 76 S.W. 567, relied on by appellant, so different on their facts as to not make them in point. Statements held admissible in the Cole case could hardly be declared self-serving under any construction. The statements held admissible in the Poole case were made a very short time before the homicide, not over an hour or two before the killing. There must necessarily be exceptional cases under any general rule, and these exceptions are largely dependent upon the facts in the particular case. In the Poole case, supra, there was a closely drawn issue of self-defense against an attack with a pistol by the deceased. In the case before us apparently the main eye-witness for the defense testified that he saw the deceased sitting by a street playing with a little rock, and that appellant presently came up said street. He said further that deceased started up the street walking toward appellant, who said to deceased: "Go on, I don't want to have any trouble out of you". Deceased walked on, and appellant again spoke and said: "Go on now, I don't want to kill you". Deceased still continued to walk toward appellant, who then said: "Get back or I will kill you", and at this juncture deceased said "Shoot", whereupon appellant raised a paper in which he had a pistol and fired. The witness said deceased had not offered to do anything with the rock, had not raised his hand or said anything to appellant, except as above stated. These facts make out a very different case from Poole v. State, supra, and Cole v. State, supra.
We find nothing in the other proposition advanced. Appellant on cross-examination of the witness Johnson had asked him many questions calculated to reflect upon him. The matters complained of in bill of exception No. 4 were elicited from said witness on re-direct examination as explanatory of the reflective facts brought out by appellant. That this is in accordance with the authorities is plain. Numerous cases so holding are cited by Mr. Branch in his Annotated P. C., sec. 94. Among them *Page 392 are Bruce v. State, 31 Tex.Crim. Rep., 21 S.W. 681; Burks v. State, 40 Tex.Crim. Rep., 49 S.W. 389; Maxey v. State, 58 Tex.Crim. Rep., 124 S.W. 927.
We are constrained to believe the case properly decided originally, and the motion for rehearing will be overruled.
Overruled.