At a former day of this term this case was affirmed, and has been pending some months on a motion for rehearing. As two of the present members of the court did not hear the original presentation of the case, upon invitation, we heard argument on the motion for a rehearing. Inasmuch as the opinion was rendered by one who is not now a member of the court, and not agreeing to all the holdings in the opinion, we have given the record more than usual study, but being unable to give our assent to the opinion, especially to the holding in the third paragraph, we think it best to give our reasons thereupon. In the first place, the record shows that the court refused appellant's bill complaining of the admissibility of this testimony, the bill in the record containing the following clause: "The defendant presented to the court his bill of exceptions No. 4 and the court refused same. The court, therefore, makes up and files this bill of exception in lieu of defendant's bill of exceptions No. 4 and orders the same filed and made a part of the record herein. This bill relates to the admissibility of the testimony of Mrs. Mary Jones, who testified that Mrs. Dixon, a few days before the deceased was killed, had said to her that the "Hickeys stayed with their friends," and said, "Oh, honey, it will be death — it is death, and that not long off."
In the original opinion the court holds that the "bill is defective, in that the testimony of Mrs. Dixon, the witness sought to be impeached is not stated, nor does it appear from the bill, that the defendant was not present."
We will not discuss as to whether the bill is defective in the particulars mentioned. It appears from the bill itself that the bill made out by defendant and presented to the court was rejected. This bill, by the action of the judge, we are not permitted to see, and know whether or not it was defective in the particulars named or any other particular. Article 724 of the Code of Criminal Procedure provides:
"On the trial of any criminal action the defendant, by himself or counsel, may tender his bill of exceptions to any decision, opinion, *Page 580 order or charge of the court, or other proceedings in the case, and the judge shall sign such bill of exceptions under the rules prescribed in civil suits, in order that such decision, opinion, order or charge may be revised upon appeal."
In regard to the rejection or modification of bills, we find the following provisions in the Revised Civil Statutes: "Art. 1367. Should the judge find such bill of exceptions to be incorrect, he shall suggest to the party or his counsel, who drew it, such corrections as he may deem necessary therein, and if they are agreed to he shall make such corrections and sign the same and file it as provided in the preceding article.
"Art. 1368. Should the party not agree to such corrections, the judge shall return the bill of exceptions to him with his refusal indorsed thereon, and shall make out and sign and file with the clerk such a bill of exceptions as will in his opinion present the ruling of the court in that behalf as it actually occurred."
It is true that other articles of the statute provide, if appellant is dissatisfied with the bill, he may prove up a bill by bystanders, yet we do not think a bill should be stricken from the record when prepared by the court because of some defect. As in this case, which was tried on June 30th and the bill not prepared by the court until August 20th, it would be almost impossible to secure a bystanders' bill at that late hour. We are all aware that trial courts do not generally permit attorneys to delay the proceedings by preparing their bills at the time the exception is taken, but notations are made, and they are generally prepared after the trial of the case is finished, and under such conditions, when the bill prepared by defendant's counsel is rejected, and the court prepares and files a bill in lieu thereof, about which defendant nor his counsel are consulted, we will not reject because of some defect of form, but in such case we will take the bill as prepared by the court, and decide whether or not any error has been committed in the matters therein recited. We can not conceive the justice of the trial court rejecting the bill as prepared by the defendant's counsel, and then we reject the bill as prepared by the court, thus depriving a defendant of all redress, no matter how grievous or hurtful the error may have been, but think the correct rule should be that, where the trial court has rejected the bill as prepared by a defendant, and prepared and had filed a bill, we should review the matter as presented by the bill prepared by the court. This will bring in review whether or not statements of the character alleged, made when the defendant was not present, are admissible as against defendant, for the recitations in the bill as prepared by the court shows the witness says: "I suppose the defendant (Hickey) was then up at Tom Dixon's place, as I saw him there very often. Mrs. Dixon stopped at my house and we had a conversation." And then it is she says the remarks were made about the Hickeys staying with their friends, and "Oh, honey, it will be death — it is death that is not long off." In *Page 581 holding that the bill should be considered, there is a statement in the opinion that we do not think the evidence justifies. "Besides, this testimony was admissible in view of Mrs. Dixon's testimony, to show interest, bias and her hostility to the deceased and to the State." The evidence of Mrs. Dixon is as follows:
"I have been sworn as a witness; I live in Brewster County now; I came from there here; I am the wife of Tom Dixon, deceased; I am fifty-two years old; Mr. Dixon and I lived together twenty-seven years before his death; I had six children by Mr. Dixon; four are living and two are dead. I know the defendant, Walter Hickey; I have known him ever since he was a little boy; we are first cousins. I remember the circumstance of my husband being killed at our house on the 11th of February, 1903. The defendant was at my house at that time. I think that he had been there about two weeks; I can not remember just when he came — some eight or ten days or two weeks; he came from Dublin or Stephenville — somewhere down there — to our house. It had been seven or eight years, as well as I can remember, since I had seen him until he came there that time; I had not thought about that in so long. He was engaged in the organ business. It was after breakfast that the killing occurred. My husband helped me to cook breakfast that morning, and we cooked some; we talked some while we were cooking breakfast. Prior to the time of the killing my husband and I had decided not to live together. It must have been six weeks or two months before Walter Hickey came to our house that we had decided not to live together. Walter Hickey did not know anything about mine and my husband's trouble before he came there. I talked to him about my trouble with my husband after he came there. I told him, that me and Mr. Dixon had decided to separate and not live together; he seemed astonished about that, which of course he was, and he asked me if it could not be fixed up and we live together again, and I told him no, that I did not think that we could; he said that he thought that the best thing for me and Mr. Dixon to do would be to live together. He never did say a thing on earth to me — nothing that I know of — to try to get us not to live together; he said that he did not want to help to divide the property, that he would rather not have anything to do with it. I had talked to him and Mr. Dixon had talked to him, too, before this, about helping us to divide the property, and he said that he would rather somebody else would; he didn't want to have anything to do with it; he finally agreed, however, to divide the personal property between me and my husband, if Mr. Dixon was willing; I didn't want him to help without everybody could be agreeable. It was agreeable with Mr. Dixon as far as I knew. The reason that me and my husband could not live together, he just took spells, got mad and cross and stormed so; my health just kept getting worse, and he would just get mad about just nothing nearly, and my health just gave way so that it just seemed like I couldn't stand it, when he would come in and begin to cursing, and I just wanted to go off *Page 582 somewhere and have peace. He was generally sober when he would have these cursing spells. He hadn't drunk any in a long time until we went out on that prairie; never did drink any after my little boy died until we went out there, and then he would just drink a little at the start, and he nearly always was in a good humor while he was drinking right then, and it was generally the next day or in a day or two when he would be mad. He would just curse; he just stormed the gospel; he cursed and raged; I just got so weak that it seemed like I couldn't live; I just wanted to go away where everything could be quiet; I was in mighty bad health then; I was awful weak and nervous. The morning of the killing he helped me to get breakfast; all of the conversation that I remember of having with him was, I remember of hearing the children singing, and it sounded so pretty, I said: `Just listen; isn't that awful pretty?' and he said, `Yes, it just suits you.' That was the first that I knew that he was't in good humor, and I said, `Yes, it is awful pretty; don't you love to hear it?' and then I don't know as he said anything more about the music, but after a little bit he said, `I am shed of one bum, and I am going to get shed of another one.' I said, `What do you mean, who are you mad at, anyhow? What is the matter? Are you mad about Walter Hickey staying here?' I thought that he had reference to him, and he said: `Walter is all right,' and that is all that I remember about it. Leonard Reid had been staying there; he had stayed there right smart; I reckon that Walter Hickey was in the house or out in the lot while this conversation was going on; I do not know whether he was helping or up here in bed. It was early in the morning, but Menta and Joe and Lillie were singing; the organ was probably new and Menta played the organ."
In this there is nothing that manifests bias, interest or hostility to the State. Of course, it shows disagreement between her and her husband, and they had decided to separate, but in no part of the record is it suggested that defendant was the cause of the separation, and when it further appears in the record that she had contributed $550 to employ two able attorneys to prosecute appellant for killing her husband, we do not think such bias or prejudice is shown in favor of defendant as to render admissible these very damaging statements. No one saw the killing except defendant; he testified to a case of self-defense. The State relied on circumstances to show his statement was not true, and that the homicide was an unprovoked murder. In the testimony, this matter Mrs. Jones testifies to is all the evidence which shows or tends to show that the homicide was a preconceived killing, and it falls from the lips of one who is employing attorneys to prosecute appellant, at a time when he is not present, and he should not be bound nor prejudiced thereby. This good woman is in an unenviable position. Her first cousin is being prosecuted for killing her husband. According to the theory of both State and defendant, the killing took place when appellant was trying to render her a service in the division *Page 583 of the property. If she was willing to be untruthful to aid him, she fails at the critical moment, for when she says that deceased remarked he had "got rid of one bum and was going to get rid of another," she says he had no reference to defendant, but remarked, "Walter (meaning defendant) is all right," and in no instance does she testify to words, acts or conduct showing hostility of deceased toward defendant, or any fact that would justify defendant in taking the life of deceased. It would have been of material aid to defendant if he could have shown these words of deceased had reference to him. So far as we have been able to find, there is an unbroken line of decisions which hold that declarations and opinions of third parties, in the absence of a defendant, which tend, as does this, to incriminate and to establish a preconceived plan to kill another, are inadmissible. In the former opinion in this case, 51 Tex.Crim. Rep., Judge Brooks, in rendering the opinion, holds that the testimony of Baxter Fortenberry was inadmissible, saying: "Appellant objected to the court permitting the witness Fortenberry to testify that deceased's daughter had attempted to hire witness to whip her father, deceased, and had permitted said witness to testify that deceased's daughter had spoken very unkindly of her father. This testimony was not admissible." Yet, in the face of that decision, in this case the court not only admits the testimony of Fortenberry, but the far more damaging testimony of Mrs. Jones, which in the case of Drake v. The State, 29 Texas Crim. App., 265, is expressly held to be inadmissible, and which question is treated at length in that decision, and which has since been followed by this court. We do not wish to be understood as holding that if a witness by her testimony shows bias, prejudice or hostility to the State, and testifies to facts in a case in behalf of either the State or defendant, that on cross-examination such witness can not be asked if she did not make statements at variance with her testimony, and such facts shown, if the witness had done so, but where the witness in her testimony, as in this case, does not indicate prejudice or hostility to the State, she can not be cross-examined on a matter about which she has not testified, and then contradicted, in order to get before the jury an opinion of a third person as a circumstance upon which a theory can be built up to show a preconceived killing. This testimony should not have been admitted.
Again, the charge in this case, in presenting self-defense, was condemned in the former appeal (45 Tex.Crim. Rep.). In the case of Richards v. The State, 53 Tex.Crim. Rep., Judge Ramsey, speaking for the court in regard to a similar charge, holds: "Again, we think there was error in the thirty-first paragraph of the court's charge. This portion of the charge is as follows: `You are further instructed that if you believe from the evidence in this case, viewing it from the standpoint of the defendant at the time, that immediately before the killing of the said W.T. McCall by defendant the said McCall had made a demonstration as if to draw a weapon, *Page 584 and from the manner and character of said demonstration (if any) and the defendant's knowledge of the character and disposition of the deceased defendant was caused to have a reasonable expectation or fear of death or serious bodily injury, and that defendant, acting under such reasonable expectation or fear, and while such reasonable expectation or fear continued, shot and killed the deceased, or if you have a reasonable doubt as to said facts, then you will acquit the defendant, although you may believe from the evidence that the deceased in fact had no weapon at such time, and that the defendant was in truth in no danger from an attack by deceased.' The vice of this charge is the inclusion in the paragraph copied of these words: `Knowledge of the character and disposition of the deceased.' There was no evidence of what his character and disposition were, and little, if any, evidence of appellant's knowledge of same, at least within recent years. Almost this identical charge was condemned by this court in the case of Hickey v. State, 45 Tex. Crim. 297. "
As said in that case, in this case the evidence in no instance speaks of the "character or disposition of the deceased," and it is only where the evidence raises this issue should it be included in the charge.
As a general rule there would be no reversible error in permitting a witness to be asked "if the witness did not know that the deceased was going to be killed," where the witness answers, "no," but in this case the harmful effect of such question can be conceived, when one takes into consideration the questions asked in regard to what she is charged with having told Mrs. Jones, which was denied, and then permitting Mrs. Jones to take the witness stand and testify that such statements were made. If the jury believed Mrs. Jones, they would give but little credence to her denial of the other fact.
Appellant in his motion also complains of the ruling of the court in regard to the testimony of the witnesses Higgins and Webb as presented in the original opinion. In the first appeal in this case, this testimony was held inadmissible on the ground that there was no proof that that bullet was of a size to have been used in either pistol. In the second appeal it was held admissible on the ground that the witness Whitworth testified that the bullet found by Webb was a 44-caliber bullet. There is no such testimony in the record on this appeal. Whitworth did not testify. In fact, a 44-caliber bullet is shown to weigh 207 grains, while the bullet found weighed only 154 grains, and there is no accounting for the difference in weight. If the testimony on another trial should develop that a bullet in passing through the ear and head would lose this much weight, under the holding of this court in Hickey v. State, 51 Tex.Crim. Rep., this testimony may be admitted, even though it was remote in time. But we would suggest that if the evidence does not meet the requirements announced in the opinions in two former appeals in this case, this testimony should not be admitted by the court.
This is the third appeal in this case, but if the trial courts do not *Page 585 follow the holdings of this court on appeal in a second trial of a case, it will necessarily be reversed. The charge of the court is in direct conflict with the opinion in this case reported in 45 Tex.Crim. Rep.; in admitting the testimony of Fortenberry and Mrs. Jones, the action was in direct conflict with the opinion of this court in 51 Tex.Crim. Rep., and we trust upon another trial of this case the same questions will not be again presented to us. On all questions not herein discussed we adopt the holdings of the original opinion.
Appellant's motion for rehearing is granted, the judgment is reversed and the cause remanded.
Reversed and remanded.