As a predicate for the objection to the testimony of Jeff Baldwin complained of, the appellant, in the absence of the jury, developed that at the time Sallie Baldwin made the statement about the pistol they had left the store at Rice's Crossing, and were going up the road north about 200 yards from the store. The defendant at the time was sitting in a buggy about 100 yards from the witness and Sallie Baldwin, and could not hear what she said; that the witness saw him in the buggy as soon as they left the store, and could see him all the time they were walking the 200 yards; that she did not know how long after the fight, but the witness stayed at the store twenty or thirty minutes after Sallie came. During this time efforts were being made to phone the officers; that to walk the 200 yards would require about seven or eight minutes, and that from where the fight occurred it would take about ten minutes to walk to the store, and the statement made by Sallie Baldwin was estimated to have taken place about forty-five minutes after the fight; that while at the store Sallie Baldwin told the witness *Page 630 about the fight, but said nothing about the pistol until they had walked 200 yards from the store in the direction of the defendant; that she was not excited while walking the 200 yards.
Predicated upon these facts the appellant objected to the testimony of the witness Jeff Baldwin to the effect that Sallie Baldwin said to him: "Jeff, you haven't even got a pocket-knife, and they have have a pistol up there." At the time this statement was made, they were about 100 yards from the appellant, and they got out of the road into the field. The Witness Sallie Baldwin gave the same testimony, to which there was also addressed an objection, and appellant developed from her as a predicate for objection practically the same facts as are detailed above with reference to the testimony of Jeff Baldwin.
The substance of the objection is that the testimony was hearsay, and not res gestae. The evidence having been admitted, it is appellant's burden to show by his bill of exceptions that the court's ruling was wrong. A statement of the principles or rules upon which res gestae statements become admissible as an exception to the rule excluding hearsay furnish only in a qualified manner a guide to the appellate court in passing upon the ruling in a particular case. Of the practice in this court, the editor of Wharton's work on Criminal Evidence, p. 499, says:
"The Court of Criminal Appeals of Texas has so far departed from the definition in the 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 limit set for res gestae. The practice in this court as tores gestae is readily explained from the fact that the Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all of the evidence before applying the law to the case at hand, and hence the admission 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."
The accuracy of this statement is verified by an examination of the decided cases.
It is shown in the instant case that from a half to three-quarters of an hour elapsed between the time the fight took place in which the pistol was exhibited and the statement complained of was uttered. In Lewis' case, 29 Texas Crim. App., 202, the statement admitted was an hour and a half after the difficulty. In the case of Rice v. State, 54 Tex. Crim. 150, it was made about an hour after the injury. With reference to the lapse of time, a similar ruling was made in Jones v. State, 52 Tex.Crim. Rep.; and in Thomas v. State,47 Tex. Crim. 535. For other cases see Rose's Notes on Texas Reports, vol. 5, 808. *Page 631
It is said they must spring out of the principal fact, tend to explain it, be voluntary, and made at a time so near as to preclude the idea of deliberate design. Obviously, under the application of the rule as it exists in this State, a certain degree of reliance upon the judgment and discretion of the trial judge, in determining whether the statement is made under circumstances which meet these requirements, must be placed. The witnesses say that Sallie Baldwin was not excited. The trial judge who heard the testimony had before him all of the circumstances, which went to show that thirty or forty minutes before the statement as made she and another negro woman had a fight in which this witness was badly worsted. At the time of this fight the appellant was in company with the other combatant, and, according to the witnesses, exhibited a pistol. The witness was bit through the nose. While Jeff Baldwin, the husband of Sallie Baldwin, was at the store where he had gone to communicate with the officers, his wife came, and, according to his testimony, she was bleeding about the nose. They then started to the home of Mr. Kuykendall, a white man, to report the trouble, and saw the appellant on the road between the store and Kuykendall's house. On seeing him, they got out of the road and went into the field and pursued their way; and at the time, or just before, they went into the field the remark complained of was made. The conclusion of the witness that there was no excitement was not binding upon the trial court, who evidently did not credit it, and, considering the circumstances, we cannot say he was not justified in drawing therefrom the conclusion that the mind of the witness Sallie Baldwin was not at the time in a condition to form a deliberate design. It appears that they did not see the appellant when they left the store, but saw him after, and when they did see him the remark was made and acted upon. This occurred while the parties were yet on the scene of the difficulty, or nearby, and while they were undertaking to communicate with the parties in authority, and we can discern nothing in the bill of exceptions which would authorize us to overturn the conclusion of the trial judge that the statement sprung out of the principal fact, tended to explain it, and was voluntary and spontaneous. The exhibition of the pistol was one of the incidents of the fight, and from the testimony of the State's witnesses was a means of intimidation.
We are unable to reach the conclusion that it is shown by the bill that in admitting the reference complained of the court transgressed the rules of evidence prevailing in this State.
The motion is overruled.
Overruled. *Page 632