This motion for rehearing has been pending for some time, and attorneys for appellant have filed a very able and exhaustive brief, citing many authorities, principally upon whether or not the statements of appellant and his wife made to Mr. and Mrs. Drinkard and Berney Brown that appellant had a few days prior to the conversation rescued her from a creek when she was about to drown, were admissible. Appellant was permitted to testify to the fact he and deceased had gone in bathing, and after he had gone out of the water and was putting on his clothing, Mrs. Brown got into deep water, and was about to drown, when he rushed into the water and saved her. The State offered no proof to contradict this testimony, and all persons who knew anything about the facts were permitted to so testify. But when *Page 386 the defendant offered to prove, first, what he had told Mr. and Mrs. Drinkard about it several days after the occurrence, the court excluded the testimony. And when he offered to prove by Mr. and Mrs. Drinkard and Berney Brown what the deceased had told them about it, the testimony was excluded. These statements as shown by the bills were but a narration of a past event. Appellant insists that the fact that they had narrated the circumstances to Mr. and Mrs. Drinkard and Berney Brown was admissible as showing his state of mind, — that he did not desire the death of his wife. Certainly the fact that he had saved his wife from drowning was admissible upon that issue, but all legal testimony tending to prove that fact was admitted. Appellant pays high tribute to Mr. Wigmore and his excellent work on Evidence, but none of the quotations from that excellent work we think bear out his contention in this case, that recitations of past events are admissible. On the other hand, Mr. Wigmore, in section 1788, volume 5, says: "The true nature of the hearsay rule is nowhere better illustrated and emphasized than in those cases without the scope of its prohibition. The essence of the hearsay rule is the distinction between the testimonial (or assertive) use of human utterances, and their non-testimonial use. The theory of the hearsay rule is that, when human utteranceis offered as to the truth of the fact asserted in it, the credit of the assertion becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand and subject to the test of cross-examination. If, therefore, an extra judicial utterance is offered, not as anassertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply." In this section he cites many illustrations. In this case would the statement made by either Mr. and Mrs. Brown to the witnesses named, that Mr. Brown had rescued her from drowning, have any weight in showing his state of mind or that he loved his wife and did not desire her death? No, but evidence of the fact that he had saved her from drowning would be of strong probative force to prove that fact, and this evidence was admitted — the only evidence which would have a bearing on those issues. The only service to admit what she or he said about it would be to prove that he had done so, and all the authorities hold that a recitation of a past event is not admissible to prove that the fact was true.
Mr. Wharton in his work on Criminal Evidence (10th ed.), says: "The rule does not permit the introduction of a narrative of past events made after the events are closed by either the party injured or bystanders," citing Com. v. Cooper, 81 Am. Dec., 762; Com. v. James, 99 Mass. 438; Greenfield v. People, 85 N.Y. 75; Hays v. State, 40 Md. 633; Gardner v. People, 4 Ill. 83; Cross v. People, 95 Am. Dec., 474; Burns v. State, 57 Ind. 46; Tipper v. Com., 1 Met. (Ky.), 6; Riggs v. State, 6 Caldw., 517; Hall v. State, 48 Ga. 608; Chaney v. State, 31 Ala. 342; Scaggs v. State, 8 Smedes M., 722; State v. Brown, 64 Mo., 367; State v. Pomeroy, 25 Kan. 349; People v. Samuels, 19 Cal. 275, and other cases.
All authorities cited by appellant in his able and exhaustive brief go *Page 387 only to the issue that when the evidence goes to show the state of mind of the person on trial, and that is an issue in the case, then statements and acts which go to show mental status are admissible. This we have come to the conclusion is a correct rule of law, and do not now wish to be understood as questioning it, but the above testimony could and would have no bearing on his state of mind, but was offered and intended for another purpose — to prove that in fact he had saved his wife from drowning, and the testimony was inadmissible to prove that fact. It would but corroborate his testimony on the trial of the case, and he can not be supported by what in law are purely hearsay statements when it has not been sought to impeach by contradictory statements or otherwise.
The next contention is that this court erred in holding that the trial court did not err in excluding the testimony of Mrs. Thomas, as to what Mrs. Brown told her while living in Brownwood: "She asked me had I heard that she and Mr. Brown were separated, and I told her yes; she says, `It is false,' she says, `I have left the farm and moved to town, his children and mine can't get along,' and she says, `I hate the farm,' and she says, `He wants my children to work in the field and they shouldn't do it,' but says, `We are not separated, he supports me, and he comes to see me,' and she says, `I love Mr. Brown and he loves me,' says, `He was to see me yesterday and bought the groceries and everything'; she says, `I don't know whether I will ever go back to the farm or not,' but she says, `I will never leave Mr. Brown,' and she says, `He has a son I don't love, he has gibed me about the property so, he told me nearly every day that I married his father for property and I would only get one-twelfth and it wouldn't be very much to fuss over.'" This was offered to show the relationship existing between appellant and his wife, as bearing on whether or not he desired her death. In this connection, the evidence heard on this trial must be considered. The State did not contend, nor did it offer any evidence to show that the separation was a permanent separation. Mr. Brown testified fully in regard to all these matters. Mrs. Brown's daughter by her first husband testified that appellant gave her mother money and came to see her two or three times a week while she was living in Brownwood. And it was further shown by all the testimony, both for the State and defendant, that in March prior to the homicide in September, that Mrs. Brown had moved back to the farm. In law this was a condonation of each of the things that had taken place prior to that time. If the State had sought to prove a permanent separation, or that he did not visit his wife while she lived in Brownwood, or that she did not visit the farm, then the question as to whether this testimony ought not to have been admitted would be more serious, but as the state of mind of Mrs. Brown was not an issue in the case, and this testimony would only show her view of the matter, it could but indirectly at most tend to show appellant's state of mind. But as herein said, by all the witnesses for the State as well as the witnesses for the defendant, it was proven that he visited her two or three times a week while she remained in Brownwood; that she visited *Page 388 the farm; that he contributed to her support, and that some six months prior to the homicide she returned to the farm, and she and appellant lived together as husband and wife, consequently the statements about the separation not being permanent would have been on an issue not really in the case, for the testimony and all the testimony showed that this separation which occurred a year prior to the homicide was not a permanent separation, and if the court had been in error in excluding that portion of the statement, it would be a harmless and immaterial error. As to the other portion of the statement of Mrs. Brown, which this witness would have testified, that "she loved Mr. Brown and he loved her," made as hereinbefore stated more than six months before the homicide, would at most only indirectly tend to show the state of feelings of Mr. Brown at that time, and have slight or no tendency to show what was the state of his mind six months thereafter, for by the record in this case, the principal trouble arose between them after she had returned from Brownwood to the farm, and it was at the time of this trouble after she had returned to the farm that appellant told Clinton Brown "that he (appellant) had not induced his wife to return to the farm; that it was her who wanted to come back, and that he thought she had talked to a lawyer or someone who made her wise, and she was working so as to get some of his property in some way, and she was going to try to make it so hard for him and his family that he couldn't put up with her, and he would have to run her off, and she hoped thereby to get some of his property." In all but one instance it will be noticed that the remarks showing love, affection, etc., were statements of Mrs. Brown and not statements of appellant. By this testimony appellant was endeavoring to show his state of feeling by making proof of how she felt and what she said, not what he had said as showing a kindly state of feelings on his part. Every time he is shown by the record to have opened his mouth in regard to the matter, his remarks would not tend to show that he loved his wife or had affection for her except in one instance: he offered to prove that while talking to Mrs. Drake he had said that "he would not let his wife drive a certain horse, because it would kill her, and that his wife had got hot about it." This would have a tendency to show that he did not then desire the death of his wife, and perhaps ought to have been admitted as having a slight tendency to show his state of mind. In all cases where the State offers testimony to show quarrels, ill will, and a state of bad feelings existing on the part of the person on trial towards the party killed, as evidencing a motive for the homicide, evidence that tends to show a different state of feeling — that he was kind in his attentions to his wife; that their relations were pleasant and agreeable, ought to be admitted, and in this case all such testimony was admitted, except in the one instance where Mrs. Drake would have testified that he said the reason he would not let deceased drive a certain horse, he was afraid it would kill her. However, Mrs. Drake was permitted to testify: "During the time that I knew Mr. and Mrs. Brown I had occasion to associate with them when they were both together; they would come to my *Page 389 house together sometimes; I knew them from the time they moved there, and I think I was the first lady that went to see them after they moved there. Mrs. Brown came to my house and to Mrs. Beeman's more than she did anywhere else, as we were closer, and she came to my house right smart, and several days I have stayed with her all the evening; they seemed to get along together as nice as any man and woman I was ever about. I never heard him give her a cross word or her give him a cross word; their relations were pleasant, and they seemed to get along as nice as any people I was ever about." Mr. and Mrs. Drinkard were also permitted to testify that they frequented the home of appellant and his wife and their relations were pleasant and agreeable, as were a number of other witnesses.
We have carefully reviewed each and all the authorities cited by counsel for appellant in their able and exhaustive brief, and reread this entire record, and we are of the opinion that no reversible error is presented. The main cases relied upon by appellant seem to be the cases of Leabo v. State, 84 Mo., 168, and Pettit v. State, 135 Ind. 349. The case of Leabo v. State is a case where the defendant was being prosecuted charged with killing his wife, and in stating the case the court says: "There was evidence tending to prove that the relations between the defendant and his wife were not as pleasant as should exist between husband and wife. This consisted exclusively of herexpressions and conduct. If there was a particle of evidence, except that found in the conduct and expressions of deceased, tending to prove that defendant was ever unkind to her it has escaped our attention." We have no such state of facts in this case. The State was only endeavoring to show his state of feeling by his acts and conduct, and not the conduct of his wife, the deceased. But what was the holding in the Leabo case? In that case it is stated that there was evidence that Mrs. Leabo was insane at times, and it was the contention evidently of appellant that she was temporarily insane when she was guilty of the acts and conduct relied upon by the State; and further to show that when she was not in that mental condition, her acts and conduct were such that would show that their relations were entirely pleasant and friendly. Under that state of facts we are inclined to agree with the court in the Leabo case. However, the Missouri Supreme Court overruled that case specifically in the case of Punshon v. State, 27 S.W. Rep. (Mo.), 1111. In the Punshon case the authorities are reviewed, and it is stated by the court that the Leabo case is not supported by any authority. However, it has been quoted from in other jurisdictions in cases where it was claimed that the person alleged to have been killed had committed suicide, or insanity was an issue. And here we might state that in a case where the contention is that the dead person committed suicide, her acts and conduct which would have a tendency to show that she committed the act, should be admitted; or in any case where the state of the dead person's feelings are an issue in the case, then her acts, conduct and declarations are admissible, and this is all any of the authorities cited by appellant in his able brief, hold when read and analyzed, unless it *Page 390 be the case of Pettit v. State, supra, decided by the Supreme Court of Indiana, and in that case it is not held that declarations made by the wife to third persons are admissible, but only that her letters to her husband are admissible, and that her declarations in the letters showing a friendly state of feeling on her part, would be some evidence as showing his state of feelings, but in no other authority cited by appellant, and in none we have been able to find is that case followed in so declaring, and we do not believe it to be a sound proposition of law. It is true the Pettit case, supra, has been cited in other cases, but only on entirely different propositions. One of them being that a husband who is charged with killing his wife by poisoning should be permitted to introduce evidence tending to show that she had been sick suffering from malaria, and that she died from malarial poisoning, and this is the rule in this State — when there is evidence tending to show that another did the killing, and such person is placed in such proximity as to have been able to commit the deed, or that the person was accidentally killed, or died from natural causes, such testimony should be admitted. The most exhaustive review of this question in any of the cases cited by appellant, or which we have read, is contained in the opinion in the case of Trefethen v. State, 24 L.R.A., 235, but it is too lengthy to herein quote from. However, we will state we agree to the rules of law therein announced, but under the facts in this case it has no application to any of the testimony rejected, unless it be the testimony of Mrs. Drake, and as herein stated if such testimony should be held to be admissible, it would not be such error as should cause the reversal of the case in view of her other testimony which was admitted. We have had no case to which we have devoted more thought and study than to the motion for rehearing in this case; the argument filed is able and exhaustive and cites many authorities, but it is deficient in that it does not take the law as announced in those cases and seek to apply the rules therein announced to the evidence in a case like this. The defense did not rely on the acts and conduct of Mrs. Brown as furnishing any excuse of appellant's acts if he killed her; their defense was that a third person slipped up on the gallery and killed her while she slept, and all the evidence shows that her life was taken in a most brutal manner while she was asleep. Under no phase of the case was the state of Mrs. Brown's mind an issue in the case. The circumstances in the case, to our minds, fully sustain the verdict of the jury, and the motion for rehearing is overruled.
Overruled.
September 8, 1914.