I have been wholly unable to agree to the affirmance of this case. The record is voluminous and contains many bills of exception showing palpable error of most material nature. These questions are so ably, fully and conclusively pointed out and discussed by counsel for the appellant in the argument hereto attached that I have deemed it but proper to adopt same as my *Page 391 dissenting opinion. Were I to write fully I would or could but follow in my own language the reasoning of distinguished counsel writing the argument. I therefore deem it but proper to give them credit, which I do by adopting their argument as my dissent. I also believe their exhaustive treatment of the questions discussed should be perpetuated in our jurisprudence as a contribution to it:
"It is an elementary principle, sound in reason, well established and recognized by legal precedent, that the existence of any emotion or state of feeling, such as hatred, malice, affection, fear, or the like, may be proven by the conduct or the utterances of a party, indirectly indicating the feelings that inspire them. In fact, it is established that the best evidence of the condition of a person's mind is his acts and words, accompanying any given feeling. Therefore, utterances offered to illustrate or establish a state of mind or state of feeling are admitted as original evidence. To support this, it is hardly necessary to refer to the decided cases, but will be sufficient to refer to some of the elementary authorities. Wigmore on Evidence, secs. 1730, 1732 and 1790; Jones on Evidence, 2nd ed., vol. 2, sec. 350; American English Encyclopedia of Law, vol. 15, p. 314. Consequently if, in a case like the one at bar, it becomes material to determine the state of feeling of a defendant toward the deceased at any given time, and when such state of feeling has become an issue, the declarations of the defendant, made at the time the state of feeling is asserted to exist, are admissible on the issue; in fact, they constitute original and the best evidence of his feelings and in such a case it is immaterial that such declarations may be favorable to his side of the issue. The objection that they are self-serving is not tenable. Wigmore on Evidence, sections 1723, 1790; Butler v. State, 33 Tex.Crim. Rep.; Nelson v. State, 58 S.W. Rep., 107; Everett v. State, 30 Texas Crim. App., 682; Wharton's Criminal Evidence, sec. 693; Greenleaf's Evidence, sec. 102.
"In Mutual Life Insurance Co. v. Hillman, 145 U.S. 285, it is said: `When it is material to prove the feelings of an individual toward another at a certain time, it is proper to receive in evidence the expressions used by the individual, so far as the same are indicative of such feelings.'
"In section 1790 of his work on Evidence, Mr. Wigmore says: `The condition of a speaker's mind as to knowledge, belief, rationality, emotion or the like may be evidenced by his utterances, either used testimonially as assertions to be believed or used circumstantially as affording indirect inferences.'
"Again, in section 1730, the learned author says: `The existence of an emotion, hatred, malice, affection, fear and the like is usually evidenced by conduct or by utterances indirectly indicating the feelings that inspire them.'
"We have referred to these general authorities announcing this well settled principle for the reason that, in the discussion of the various bills of exception, it is a matter of importance to hold this principle in mind. `A frequent recurrence to first principles is absolutely necessary *Page 392 in order to keep precedents within the reason of the law,' was written by Judge Roberts in Duncan v. Magette, 25 Tex. 245, at *page 252.
"In the beginning it may be said in a general way that, in this case, the State relied for conviction upon circumstantial evidence. As a part of its case, it sought to show that appellant had a motive to kill his wife. This motive the State sought to show was illustrated and established by certain ill feelings and bad relations that had been existing between the defendant and the deceased after their marriage. Among other circumstances introduced as showing such bad relations and ill feeling, the State proved that defendant and deceased had separated and that she had gone to Brownwood and defendant had remained on his farm. The State also proved by the witness Viola Wilson, and other witnesses, facts tending to show an actual separation and that defendant did not support the deceased during said time and that deceased supported herself and her children during the separation by sewing and by selling toilet articles. Other bad relations and ill feelings were also illustrated by various quarrels proved by the State. It is unnecessary to go into detail with reference to these various quarrels over their children and other matters, but the facts introduced by the State along this line were sufficient to show that the parties were getting along badly. In this state of the record, and upon this issue, the defendant sought to introduce the testimony shown in the various bills of exceptions disclosed in the majority opinion, and to which we will now refer.
"Bill of exception No. 16 complains of the refusal of the trial court to admit the testimony of the witness Minnie Thomas with reference to certain statements made to her by the deceased, Sallie Brown, while said Sallie Brown was living in the city of Brownwood, apart from her husband. The bill shows that the court refused to admit the following testimony of the witness:
"`She (the deceased) asked me if I had heard that she and Mr. Brown (appellant) were separated, and I told her, yes. She said, "It is false. I left the farm and moved to town. His children and mine can't get along. I hate the farm. He wants my children to work in the field and they should not do it. We are not separated. He supports me and he comes to see me. I love Mr. Brown and he loves me. He was to see me yesterday and bought the groceries and everything. I don't know whether I will ever go back to the farm or not, but I will never leave Mr. Brown. He has a son I don't love. He has gibed me about the property, too. He told me nearly every day that I married his father for the property and I would only get one-twelfth and it would not be very much to fuss over." I wanted you to know that we were not separated.'
"The objection of the State that this testimony was hearsay was sustained by the court. We submit that the testimony was clearly admissible for the following reasons:
"(1) Since the State contended and sought to show by its witnesses as proof of motive that the defendant and deceased had been getting along badly and had in fact separated and that he had no affection for her, *Page 393 and since the state of his feelings with reference to his wife thus became a material issue in the case, her declarations evidencing the state of her affection for him and also evidencing their friendly relations generally were admissible not only as establishing the state of her own mind and affection, but as indirectly evidencing the state of defendant's feelings. The State contended, in substance, that defendant and deceased were unfriendly each toward the other, were getting along badly as husband and wife, and had in fact gone so far as to separate as the result of their unfriendly state of mind. In this state of the record, the declarations of either of them being admissible to establish the state of mind of the declarant, were also admissible to indirectly establish the state of mind of the other party. On account of the close and peculiar relation between husband and wife, the jury might well have concluded that the state of the wife's affection with reference to the husband would ordinarily furnish a true and reliable index to the state of his affections toward her, for if he had been mistreating and abusing her, or evidencing toward her a lack of affection, ordinarily this fact would be reflected in the state of her own affections toward him. In other words, the relations between a husband and wife are so reciprocal and mutual in their nature that the declarations of one with reference to the affection of one for the other must indirectly indicate, in most instances at least, the state of affections of the other. The weight or value of the evidence was for the jury. These propositions are clearly and squarely supported and applied by the authorities following: Wigmore on Evidence, sec. 1730, and cases cited; Pettit v. State,135 Ind. 395, 34 N.E. Rep., 1118; Leabo v. State, 84 Mo., 168, followed by this court in Early v. State, 51 Tex. Crim. 382; Josephine v. State, 39 Miss. 613; Cole v. State,45 Tex. Crim. 225; s.c., 48 Tex.Crim. Rep.. See also Wharton's Criminal Evidence, section 304, page 1696, and also section 948, page 1828, second edition, where the doctrine announced in the Pettit case, supra, is embodied by the author in the text of his work.
"In the case of Pettit v. State, supra, it was held that, on the prosecution of a husband for the murder of his wife, the State relying on loss of affection for her and infatuation for another woman, an affectionate letter written by the wife to the husband is admissible to disprove the existence of a motive for killing his wife. We quote (pages 1124-25):
"`Another question arising upon the record is as to the alleged error of the court in rejecting, as evidence for the defendant, a letter from Mrs. Pettit to her husband, containing expressions of endearment. It is urged by appellant's counsel that the letter was admissible, both in rebuttal of the theory of the husband's loss of affection for his wife, and in contradiction of Hickman as to complaints of the wife heretofore given, and of Wilson that Pettit was neglecting his wife, in being from home days at a time without advising her of his whereabouts. The record does not disclose that the court permitted evidence of complaints by Mrs. Pettit. On the contrary, such evidence was expressly *Page 394 excluded. The evidence of Hickman and Wilson was of conversations between Pettit and themselves. The letter, therefore, was not admissible in contradiction of those witnesses; but, from our view of the question, it was proper to have admitted in evidence the letter of the wife to the husband. The relations existing between the deceased and her husband were naturally, and, by the theory of the State's evidence, necessarily, the foundation upon which the guilt of the defendant was to be determined. While indifference or even ill treatment by the husband does not necessarily destroy all the affection of the wife for him, yet the degree of that affection must, to a greater or less extent, depend upon his treatment of her. The relation of husband and wife is peculiar, in that all of the interests of life concern them alike, and are so inseparable from their thoughts of and affections for each other that it can not be said, as a matter of law, that the estrangement of the husband necessarily destroys the affection of the wife for him. It necessarily follows that the existence of affection for him does not of itself preclude the loss of affection by him. Where the relation is the subject of inquiry, and where it becomes proper to investigate the treatment of one towards the other, with a view of determining that relation, it is proper to canvass the treatment of the other toward that one. The treatment by each of the other casts a light into the otherwise dark recesses of the heart of each. The strength of that light is a subject for the jury, and may not be determined as a question of law. The letter of a wife, with whose murder her husband was charged, though written to a third person, was held admissible `to disprove the existence of the motive to commit murder, which the testimony for the State conduced to establish.' State v. Leabo, 84 Mo., 168.
"This case is squarely in point. It is based upon sound reason, has been cited by the elementary writers with approval, and has never been disapproved.
"The case of State v. Leabo, 84 Mo., 168, 54 American Reports, 91, is also in point. In that case it was held that, on a trial of a man for murder of his wife, the prosecution having given proof of the conduct and expressions of the wife to show that their relations were unpleasant, the defendant may rebut it by letters of the wife to a third person, written from three to five months before her death and indicating affection for her husband. In that case, the court says:
"`We do not decide that such testimony is admissible under all circumstances, but when the plaintiff makes it a part of his case to show the existence of bad blood between the husband and wife in order to establish a motive for guilty conduct ascribed to him, it is admissible. If the State may introduce evidence of her declarations and conduct inculpatory of her husband, it is equally his right to have the benefit of her declarations and conduct to meet such evidence, and what better evidence could there be of a husband's affection for his wife than her confidential letters to a friend and companion of her youth in which she declares that he is the kindest husband in the world, worth his weight in gold, and expressing a wish that, if that friend should ever *Page 395 marry, she may get such a man as she has. The evidence offered by Leabo was no more hearsay than that received in the case above cited. Will such evidence be admitted in a civil action in resistance of a mature demand, and refused in a criminal prosecution, in which one's life or liberty is at stake? Has the law less regard for the life and liberty of a citizen than for his goods and chattels?'
"But it is said in the majority opinion that the case of State v. Leabo was overruled by the Supreme Court of Missouri in the case of State v. Punshon, 124 Mo., 448, 27 S.W. Rep., 1111, in which it was held, on trial of a husband for murder of his wife, her statements tending to show the affectionate character of their domestic relations are not admissible. We do not believe that this furnishes a sufficient reason for a refusal to follow the Leabo case. It is true, of course, that, where a decision has been overruled by the court which rendered it, it can no longer be cited as a precedent in that court or in any subordinate courts of the same State. It may, however, be still followed in other jurisdictions if regarded as announcing a sound doctrine. We submit that the case of State v. Leabo not only announces a sound rule, but a rule that has been universally accepted, and further that the case of State v. Punshon has never been approved except by the Supreme Court of Missouri, and has been condemned by the leading text writers as announcing an unsafe and unsound rule. Mr. Wigmore, in section 1730 of his work on Evidence, in a lengthy note, collates many of the leading cases on this subject, citing, among others, State v. Leabo, supra. He also there makes the following mention of State v. Punshon:
"`In State v. Punshon, 124 Mo., 448, 27 S.W. Rep., 1111 (1894),such evidence was, against all precedent, rejected.'
"If this criticism is a correct one, and we submit that it is, the case should not be followed.
"Mr. Chamberlayne, in his work on Evidence, in a note following section 2671, with reference to the admissibility of such declarations, and after citing the case of State v. Leabo with approval, says:
"`These declarations have been rejected as hearsay apparently under a misapprehension. State v. Punshon, 124 Mo., 448, 27 S.W. Rep., 1111.'
"Mr. Wharton, in the latest edition of his work on Criminal Evidence, volume 2, page 1828, says:
"Where accused is on trial for uxoricide and there is evidence that the relations between him and his wife were unfriendly, it is relevant for him to introduce letters from her showing heraffection for him,' citing Pettit v. State, supra, and State v. Leabo, supra.
"The author does not note the case of State v. Punshon, supra, at all. And again, the same writer, in section 904, on page 1696, embodies in his text the doctrine of the Pettit case. The doctrine of the case of State v. Leabo is cited in Cyc. as a correct rule, volume 21, page 914. And again, the case of Statev. Leabo has also been followed in our own State, and that sinceit was overruled by the Supreme Court of Missouri. *Page 396 We refer to the case of Early v. State, 51 Tex.Crim. Rep., and from the opinion in that case quote the following:
"`In the original opinion we failed to treat one of appellant's assignments predicated on his twenty-sixth bill of exceptions, relating to the excluded testimony of Cleve Sanders. Appellant sought to prove by this witness that after the difficulty in the barber shop between Calloway and Early that they made friends. It appears that the State in order to show animus on the part of appellant towards deceased proved a difficulty between Early and deceased about two or three weeks before the homicide in the barber shop at Mt. Calm and this was followed by proof on the part of the State by the witness Stirman; that on the day preceding the homicide appellant had used language manifesting ill will towards deceased on account of the previous difficulty at the barber shop, and in addition to this testimony indicating ill will, the State also proved by Guion that appellant had said Calloway was a rascal and he could not arrest him. In the face of this testimony on the part of the State, appellant himself testified that he and deceased had made friends with regard to the difficulty at the barber shop subsequent thereto. In addition to this he offered to show by the witness Sanders that he knew the defendant and deceased were friendly after the difficulty at the barber shop, because he had been informed by the deceased and the defendant that they had made up, and had agreed to forget and overlook said trouble, and that deceased and defendant informed said witness after the difficulty their feelings were friendly towards each other. We believe this testimony was admissible. The State's case against appellant was purely of a circumstantial character. The State proved appellant was present when Harmie Horn slew deceased, but was not able to prove any direct act on the part of appellant showing any actual participation in the difficulty. The case against appellant was mainly supported by proof of his animus growing out of a former difficulty between himself and deceased at the barber shop, and any proof, it occurs to us, was admissible which would show that the former difficulty had been settled and the parties were friendly, and here appellant proposed to show it both by expressions from appellant and from the deceased to the witness Sanders. This could hardly be said to be purely self-serving declarations; certainly not coming from deceased, and we hold this testimony was authorized. See Gaines v. State, 38 Tex.Crim. Rep.; Turner v. State, 46 S.W. Rep., 830, and State v. Leabo, 84 Mo., 168.'
"Since the case of State v. Punshon has not been approved by any court except that of Missouri, and since it is condemned by two of the leading writers on evidence and ignored by the others, and since the case of State v. Leabo is cited with approval in nearly all the elementary works on evidence and has beenexpressly followed by this court, we do not believe that this court should follow the case of State v. Punshon. It undoubtedly announces, as has been shown, an unsound rule and one contrary to all other precedents. We have noted that in the opinion of the majority reference is made to the fact that, in the case of State *Page 397 v. Leabo, the deceased, Mrs. Leabo, `was periodically slightly deranged before and after her marriage and, when so affected, expressed herself as weary of life.' It does not appear from the opinion of the court in that case that it regarded this fact as of any controlling importance. The declarations were held admissible `to disprove the existence of the motive to commit the murder, which the testimony of the State conduced to establish.' Moreover, if that be regarded as a controlling feature in the case, we do not understand how it can affect the admissibility of the declarations generally, for their admissibility must depend upon their being in rebuttal of the contention of the State. In the Leabo case, the wife had made declarations indicative of a bad state of feeling between herself and husband and thus indirectly indicating his lack of affection for her. If the husband was entitled in that case to introduce her declarations made to other parties at different times to rebut what was asserted in the other declarations, then in this case defendant was entitled to use similar testimony. The fact that mental derangement and insanity is involved had no material bearing on the question. Moreover, such an issue was not presented in the case of State v. Pettit, supra, and that case has been universally approved and nowhere disapproved. And again, the Leabo case having been approved in our own State, and the rule in that case having been adopted in this State, we think it is too late to refuse to follow that case, unless the court is prepared to overrule the case of Early v. State, 51 Tex.Crim. Rep., and no good reason for overruling that authority is suggested. Inthat case, no issue of insanity or mental derangement or anyother fact of that character was involved. The point was squarely ruled that, since the State has introduced various facts and declarations tending to show a bad state of feeling between defendant and deceased, defendant was entitled to introduce the declarations of the deceased to the witness Cleve Sanders in rebuttal that he and defendant had made up and were friends. Under the Early case, the testimony in this case was clearly admissible. If precedent can be invoked to settle any legal question, then this question is settled by the Early case. There are, moreover, other decisions of this court which support our view. See Cole v. State, 45 Tex.Crim. Rep.; Cole v. State, 48 Tex.Crim. Rep.; Schaur v. State, 60 S.W. Rep., 249; Nelson v. State, 58 S.W. Rep., 107; Everett v. State, 30 Texas Crim. App., 682; and Butler v. State, 33 Tex.Crim. Rep.. See also the case of Morrison v. State, 40 Tex.Crim. Rep., at page 497, where declarations of this character were admitted on behalf of the State over the objection of the defendant and a sentence of death was affirmed, the court ruling the declarations admissible as indicative of mental condition or emotion. See also State v. Baldwin, 36 Kan. 1; Commonwealth v. Howard, 91 N.E. Rep., 397; Gaines v. Relf, 12 Howard, 472. In the case last cited it was held that where it was material to show the state of mind of a husband toward his wife, his letters to a third person indicative of affection for her were admissible. Many other authorities might be cited, but we deem it unnecessary. No pointed authorities are cited to the *Page 398 contrary, except the case of State v. Punshon, supra, and we do not believe that case announces a sound doctrine, as we have shown.
"(2) The evidence of the witness Minnie Thomas with reference to her conversation with the deceased, heretofore referred to, was admissible upon another and distinct ground from the one last discussed, viz: One of the facts introduced by the State as illustrating and establishing the bad relations existing between defendant and deceased was the established fact that they had separated as the result of their disagreements. In other words, the State contended that, when Mrs. Brown was staying in Brownwood and defendant was on his farm, they were separated in the ordinary sense of that term. From this the jury might and probably would infer that they were lacking in affection for each other. It, therefore, became material and relevant for defendant to introduce any competent evidence establishing the true character of this supposed separation. A separation between a husband and wife is an abnormal state, continuous in character, and, on sound principle as well as authority, the declarations of either of the two parties during the existence of said abnormal state characterizing the said state, are admissible as original testimony in the nature of res gestae declarations accompanying the continuous act and state of separation. It has always been held that the wife's declarations upon leaving him and separating herself from her husband are admissible as res gestae accompanying the act of separation. McGowen v. McGowen, 52 Tex. 657 [52 Tex. 657]. The State of separation being continuous in character, under the same rule the declarations of either party during the existence of said continuous state or act should be admitted as res gestae of said act or state and as characterizing same. See Edgell v. Francis (Mich.), 33 N.W. Rep., 501. See also Jones on Evidence, second edition, section 347, discussing the time through which declarations may be regarded as res gestae declarations and calling attention to the riot cases and other cases of like character, involving continuous transactions.
"We submit, therefore, that, since the State contended in this case that the separation between husband and wife was unfriendly, the declarations of either during the existence of such state of separation characterizing this state were admissible upon the principles just discussed.
"Many authorities might be referred to to establish the correctness of our views last expressed. We will refer, however, to only a few of them.
"In Postens v. Postens, 3 Watts S. (Pa.), 127, it was held that, where the relations existing between two parties is in issue and the question as to whether it is that of landlord and tenant or master and servant the declarations of either relating to the matter and made during the time in question are competent evidence as a part of the res gestae. We quote, `The relations of the parties being of a doubtful interpretation, the character in which they really stood may be proved by the declarations of either made at the time as to the relations existing between them.' Applying this rule it is undoubtedly true that the *Page 399 declaralarations of either Mr. or Mrs. Brown during the time of their separation characterizing the state of their relations was admissible. There can not be the slightest doubt with reference to this proposition.
"Again it was held in Jewell's Lessee v. Jewell, 1 Howard (U.S.), 219, 232, that, where the issue was whether a man and woman who had cohabited for several years and had several children and then separated by agreement, were legally married and their acts and declarations during the time of cohabitation had been shown, a notice appearing in a newspaper a short while after the separation signed with the name of the husband warning all persons against giving credit to the woman on his account was held admissible as a part of the res gestae of the act of separation and previous cohabitation.
"In Badger v. Badger, 88 N.Y. 546, it was held that, where the question in issue was whether a lawful marriage existed between two persons who lived as husband and wife a letter in the alleged husband's handwriting and signed by the woman alone as his wife was admissible as a part of the res gestae.
"In Burns v. Smith, 21 Montana, 251, in an action for the specific performance of a contract alleged to have been made by defendants' intestate, to give a child's share of his estate to one he received into his family and treated as an adopted child, the declarations of the deceased as to the relations between himself and such person were held admissible as a part of the res gestae, on the ground that the res gestae extended over the entire period of years between the time of the alleged contract and the death of the deceased.
"We therefore submit that the declarations of Mrs. Brown made during the period of the separation between herself and husband were admissible as res gestae of the act or state of separation and as characterizing the same. This question is not discussed in the opinion of the court, but nevertheless we feel certain that under sound principle as well as precedent her declarations should have been admitted upon this ground.
"(3) And again, upon another ground that may be regarded as distinct, the testimony referred to of the witness Minnie Thomas should have been admitted. The State did not content itself with merely proving the unfriendly state of defendant's mind toward the deceased. Its testimony also tended to show that both parties were in an unfriendly state of mind each with reference to the other. In other words, the State sought to show and its testimony tended to show a mutual state of unfriendliness and lack of affection. For instance, this was shown by proof that they had quarreled, had lived apart and had separated as the result of disagreements, etc. It was, therefore, we submit, permissible for defendant to introduce the testimony referred to of the witness Minnie Thomas to prove the state of mind of the deceased in rebuttal of the contention of the State and as destructive of the weight to be attached to the theory of the State by the jury. Clearly, if this evidence had been admitted and, based on it, the jury had believed that, during this separation, the deceased loved defendant and was being supported *Page 400 by him, this would or at least might, have caused the jury to disbelieve the theory of the State that defendant, during the period of separation, was lacking in affection for his wife. The contention of the State that defendant did not love his wife was, under the record, closely coupled with its contention that she did not love him. Hence testimony tending to show her love for him inferentially tended to show his love for her. Leabo v. State, supra; Pettit v. State, supra, and other authorities referred to under the first proposition.
"(4) There is another ground upon which the testimony of the witness Minnie Thomas was admissible, in this: The State had been allowed to prove not only the declarations and conduct of defendant illustrating or evidencing his lack of affection for his wife, but also, in this connection, had introduced her own declarations and conduct illustrating and evidencing her lack of affection for him. For instance, her declarations made in his presence evidencing their disagreements and bad state of relation generally had been admitted. Various conversations between them, as detailed by her in his presence to other witnesses, had been placed before the jury. This had been proven by the testimony of Clint Brown, Viola Wilson and various other witnesses. These declarations of the deceased, made in the presence of defendant, as testified to by various witnesses, evidenced not only a lack of affection for her by defendant, but also recited a course of bad treatment and disagreements on his part. Now, in this state of the record, the declarations of the deceased indicating that the defendant did not love her having been introduced on behalf of the State, her declarations made to other persons to a contrary state of facts were admissible. In other words, the state of the record is this: The wife, in the presence of the husband, and in the hearing of various witnesses, recites their previous quarrels and disagreements and his course of bad treatment toward her. The court admitted these declarations made by her, because they were made in his presence. Defendant then seeks to show by the witness Minnie Thomas that the deceased had made declarations to her contradictory of the state of facts introduced by the State. It is therefore clear upon elementary principles that the testimony of Minnie Thomas that the deceased had made declarations to her contradictory of the state of facts introduced by the State should have been admitted on this theory. The deceased stated to Minnie Thomas that she and her husband got along well, the only trouble between them being with reference to their children, and that defendant supported her and took care of her and came to see her, and that she loved him and he loved her. This declaration contradicted materially the declarations of deceased made to other witnesses, introduced by the State. They were, therefore, admissible.
"There is another matter with reference to the exclusion of certain testimony that we submit clearly presents reversible error, and we will briefly discuss it. Defendant's bill of exception No. 22 complains of the exclusion of the testimony of the witness Mrs. Sarah Drake. In that bill he sought to prove his own declarations made to Mrs. Drake on *Page 401 Thursday before the tragedy on Saturday, said declarations evidencing an affection for his wife. It is unnecessary here to copy this bill of exception. It is referred to in the opinion of the majority of the court. It shows that Mrs. Drake and defendant had a conversation with reference to deceased driving a certain horse owned by defendant. It appears that Mrs. Drake's husband and defendant had been talking about trading horses, and in the conversation Mrs. Drake expressed the belief that a certain cream-colored horse owned by defendant was the prettiest horse he owned, but that, if she was the deceased, she would be afraid to drive it because it was so cranky. Defendant replied: `There is no danger on earth in it, but that one out there she wants to drive it and I won't let her and she gets sort of hot about it sometimes, but she'll get over it and I know if I would let her drive it it would kill her.' The witness testified that the defendant stated that he would not let the deceased drive the horse on account of the fact that he was afraid that she would be injured and killed. This conversation occurred only two days before the homicide. Now, the State contended that the defendant had no affection for his wife, desired to get rid of her and that they had been getting along very badly. Various testimony was introduced by the State tending to support this theory. It was, therefore, material and relevant for the defendant to introduce any competent testimony disproving this contention. The best evidence of the state of mind or affection of any person at any given time, as we have shown, is his acts or declarations evidencing such state. This is held by all the authorities. In this connection, it is wholly immaterial that this declaration of defendant evidenced affection for his wife instead of a lack of affection for her. The objection that it is self-serving is not tenable and is not supported by any authority, but is contrary to all. All the authorities hold that, when declarations are offered upon the theory that they evidence a state of mind or affection, the objection that they are self-serving can not be sustained, because they are not regarded as ordinary declarations which may be classified as disserving or self-serving. They are admissible as original evidence of the state of mind of the declarant, and the mere fact that they are favorable to the declarant is wholly immaterial. For a court to hold that the defendant may not introduce his own declarations illustrative of a friendly state of mind towards the deceased is in practical effect to hold that he can not establish that fact by any means whatever. This follows for the simple reason that the best, the most logically persuasive and in fact the most reliable evidence of a state of mind is the act or declaration of the party at the time of the alleged state. See Wigmore on Evidence, section 1732; the same writer, section 1790. That the objection that these declarations are self-serving is not valid, see Wharton's work on Criminal Evidence, section 693, last edition; also Wigmore, section 1790.
"And again, in addition to the above view of this testimony of Mrs. Sarah Drake, we believe that it was admissible as circumstantially and *Page 402 indirectly indicating the state of the defendant's mind and affections with reference to his wife. As we have said, this conversation occurred on Thursday. The deceased was killed on Saturday. There is not the slightest suggestion that this declaration of defendant was manufactured or prepared. The declaration does not involve or present a mere bare assertion of the fact of existing love or friendship. A declaration of that class, made so near the time of the homicide, might, with some show of logic and reason, be regarded as suspicious. A mere conclusion or an assertion of the defendant of his state of mind and affection towards his wife is not involved. What makes this declaration of peculiar value, and this is regarded by the law as important (Wigmore, section 1790) is that it indirectly and circumstantially indicates affection. If the defendant had merely asserted as a fact that he loved his wife, this declaration, made so near the homicide, might, as we have said, with some show of reason, be rejected as probably manufactured or self-serving. As to this, however, under the peculiar state of the record presented in this case, we do not deem it necessary to determine. Under the Early case and the other authorities we have cited it was admissible even when viewed from this standpoint. Wigmore, section 1730. But here is a declaration, apparently spontaneous in nature, not involving any bare assertion of affection, but indirectly and by clear inference indicating a friendly and affectionate state of mind towards his wife. It is true, as shown by Mr. Wigmore, in section 1730 of his work, that a declaration directly asserting as a fact the existence of a given emotion may be admitted. Many cases are collated by him under that section, illustrating the admissibility of such declarations. The case of State v. Leabo, 84 Mo., 168; State v. Pettit, supra, and Early v. State, all involve declarations directly asserting the existence of a given emotion. In most of these cases the declarations were held to be admissible upon the theory that they were in rebuttal of an opposite contention. It was admissible on that ground. But independently of this ground, and without reference to the doctrine laid down in the cases just referred to and discussed (Wigmore, section 1730), the conversation of defendant with Mrs. Drake was admissible under the rule discussed by that writer in section 1790 of his work. We will not quote from the section at length, but the following correctly states the rule:
"`The condition of a speaker's mind as to knowledge, belief, rationality, emotion, or the like, may be evidenced by his utterances either used testimonially as assertions to be believedor used circumstantially as affording indirect inferences.'
"The conversation of Mrs. Drake was admissible as coming within the class last mentioned, viz: as a declaration to be `used circumstantially as affording indirect inferences.' If defendant was unwilling for his wife to ride a dangerous horse because he was afraid she would be hurt, this indirectly indicates affection for her, and the declaration was admissible under this rule. Mr. Wigmore says, with reference to such evidence:
"`It is worth while to emphasize the legitimacy of this circumstantial aspect of such evidence because it incurs the risk of being ignored *Page 403 through the judicial disposition in part to account for it by the unmeaning shibboleth of res gestae (post section 1796) or by the exception for statements of a mental condition (ante section 1715). The evidence is circumstantial, not testimonial, and it is therefore not obnoxious to the hearsay rule nor needs for itsadmission any exception to that rule. No doubt in given instances it may be difficult to distinguish a genuine circumstantial use of utterances for this purpose, and this difficulty has generally been considered (ante section 285); but isolated instances of difficulty need not prevent us from recognizing the plain principle in its ordinary unquestioned uses.'
"Under the doctrine thus clearly stated, the conversation of the defendant with Mrs. Sarah Drake, expressing his unwillingness that his wife should ride the dangerous horse, said conversation occurring only two days before the homicide, was clearly admissible as furnishing to the jury a basis upon which it might have based an indirect inference that the contention of the State that defendant did not love his wife was unfounded. Moreover, there can be no doubt that this statement of the rule is correct. In fact, it is now generally conceded by the bar and bench that Mr. Wigmore, in his monumental work on Evidence, has produced one of the greatest, if not the very greatest, modern commentary on any legal subject. The entire work is characterized not only by the profoundest learning, but also by the most discriminative analysis. Of the many works on evidence, Mr. Wigmore's work stands unrivaled in its distinctive superiority. This being true, we are glad to cite the work in support of our position with reference to the admissibility of this testimony.
"In their opinion on rehearing, the majority of the court seem to concede the admissibility of this evidence and, if we interpret the opinion correctly, hold that the evidence should have been admitted. However, it is held that, notwithstanding this evidence was admissible and should have been admitted, the judgment should not be reversed on account of it being rejected. With this conclusion we are unable to agree. It is not for this court to determine the weight of the evidence. Revised C.C.P., art. 734. That responsibility rests with the jury. Same article. The evidence introduced against defendant is wholly circumstantial. No motive for the killing was ascribed to defendant, except a lack of affection for his wife and a desire to get rid of her. Much testimony along this line was introduced by the State. The conversation with Mrs. Drake happening just two days before the homicide involved and presented the latest expression by defendant of his attitude towards his wife. What weight the jury would have attached to this evidence we are unable to determine. We know, however, that the jury might well have concluded that, since defendant, just two days before the homicide, in a conversation with Mrs. Drake, expressed his unwillingness that his wife should ride this dangerous horse and a fear that if she did ride the horse she might be killed, he evidently loved his wife at that time. It is certain that no statement made either by him or by his wife at a time later than the conversation with Mrs. Drake, indicating a lack of *Page 404 affection or bad feeling between them, was introduced. All of the declarations introduced by the State with reference to quarrels and disagreements related to times antedating the Drake conversation. If the jury had reasoned, as we have shown, with reference to the Drake conversation, it might have rejected the evidence of the State relating to disagreements and bad feeling previous to that time. Many arguments pro and con along this line might be offered. It is the wildest speculation to undertake to decide what view the jury might have taken of this evidence, had it been introduced before them. The evidence was admissible, was highly material and might have, in the opinion of the jury, changed the result. Therefore the judgment of conviction should be reversed.
"(4) We next desire to refer to defendant's bills of exceptions Nos. 12, 13, 14 and 25, all presenting in substance the same question. These bills complain of the exclusion by the trial court of the testimony of various witnesses to a conversation between defendant and deceased with reference to the swimming hole incident and with reference to the fact that defendant rescued his wife from drowning only a few days before the killing. This was sought to be proven by the testimony of the witnesses Berney Brown, E.I. Drinkard and his wife, and also by the testimony of the defendant, and was rejected. We will not state these bills of exception in detail. It is sufficient to say that, about a week before the homicide, the deceased and defendant went down to a certain creek not far from their residence, to go in bathing. There was water in the creek about ten feet deep. Defendant sought to show by the witness Berney Brown that that night at the supper table, after coming home, Mr. and Mrs. Brown related to the children this incident and the fact that defendant had saved her from drowning. Defendant further sought to show a conversation had between himself and Mr. and Mrs. Drinkard with reference to this drowning incident, and in which they related the incident to the Drinkards. We quote from the bill the testimony of the witness E.I. Drinkard that was offered and rejected:
"`Sister Brown spoke up and says, "Do you know I like to have got drowned the other day?" and my wife spoke and says, "No, I didn't hear anything about it." "Well," she says, "I did," and she asked them how it happened, and she said, "Me and Mr. Brown was going to town and we taken some clothes along with us and when we got to Wilis creek we stopped and went in bathing and I like to have got drowned," and Brother Brown he spoke up and says, "Yes, I stayed in with her as long as I wanted to and went out on the bank and when I got out I told her about the water and pointed the direction the deep water was and told her it was too deep out there," and he went out on the bank and he stayed there until he got a notion to change his clothes and he started to change his clothes and he heard her speak and say, "I'm drowning," and he said it didn't excite him at all, because she had been playing that way with him all the time in the water, and he looked around and sure enough she was drowning and he had to go in and get her out. And Sister Brown spoke and says, "You don't know how *Page 405 thankful I was Mr. Brown was with me, if he had not been there me and the girls might have went down there and part of us or all of us might have got drowned."'
"We have quoted this to illustrate the general trend of this testimony. As stated, these conversations occurred only about a week before the homicide. We are of the opinion that, since the State had introduced many different transactions, conversations, declarations, quarrels, etc., indicative of a lack of affection asserted to exist between Mr. and Mrs. Brown, all being introduced to support the State's theory with reference to his motive to kill her, it was admissible for the defendant, in rebuttal, to introduce this testimony and that reversible error was committed in rejecting it. The testimony presents a dual aspect, and we submit that it was admissible upon two different theories. First, it was admissible in rebuttal, upon the grounds we have stated with reference to the testimony of the witness Minnie Thomas. Its admissibility upon this ground indirectly supported by the Leabo case, the Pettit case, and by the Early case, and the other authorities we referred to in discussing the testimony of the witness Minnie Thomas. Second, the testimony was admissible upon the principles just discussed with reference to the testimony of the witness Sarah Drake. In other words, aside from its admissibility, viewed testimonially, it was admissible as circumstantially and inferentially illustrating the state of mind existing between these parties at the time the conversations occurred. Upon this theory its admissibility would not be affected by the fact that, viewed as testimonial declarations, it should be rejected. In other words, the declarations of the deceased and defendant made to these witnesses, reciting or narrating the facts with reference to the swimming hole incident, might be rejected as hearsay, and still the conversation be admitted not to establish the facts as recited or narrated, but to establish the state of affections of the declarants. Upon both these grounds the testimony should have been admitted. The State had been given a very free hand in introducing evidence tending to show motive and its testimony had covered a wide scope. This testimony should have been admitted in rebuttal of the contention of the State that the defendant did not love his wife. The content of the conversation between defendant and his wife and between them and the witnesses referred to is wholly immaterial, viewed as testimonial assertions. It can make no difference what the parties might have been talking about. A conversation between them on any subject whatever at a time so recent before the homicide, indirectly indicating a friendly and affectionate state of mind, was admissible. When this testimony was offered, and when the counsel for the State had objected to the testimony on the ground that same was hearsay and upon the further ground that it was an error to reproduce the self-serving declarations of the defendant, counsel for defendant stated that the testimony was offered as original evidence as showing the feeling or mental attitude of the parties and was admissible just as declarations of health would be admissible. It is clear from the bills of exception that the testimony was offered not to prove the facts with *Page 406 reference to the drowning incident but to prove the state of the mind of the declarants at the time of the conversation. Having been offered upon this theory, the objection of the State that it was hearsay and self-serving can not be sustained by any authority. No case has been cited or can be cited, holding that declarations tending to show mental condition, emotion of state of mind can be regarded as hearsay or as self-serving. If the declarations had been offered for their testimonial value as establishing the facts narrated or recited, then there might have been some point or force in the objections made by the State, but all the writers recognize that the objection that declarations indicating mental condition or emotion are hearsay or self-serving can not be sustained. This arises from the fact that such declarations are not classed as oral declarations. They are admissible as original evidence, circumstantially indicating a condition of mind and, when this consideration is held in mind, the objection that they are hearsay or self-serving appears at once to be wholly meaningless. If the rule were otherwise, it would be practically impossible, in a court of justice, to prove the mental state of any given person, for if his declarations, circumstantially indicative of that state, are not admissible, but are rejected as hearsay or self-serving, then evidently his acts, which also are merely circumstantially indicative of his state of mind, would be subject to the same objections and would not be admissible. In lieu of this the jury would have to accept the unsatisfactory, inconclusive and, in most instances, utterly unreliable statement of some witness as to what he then thought was the state of mind of the person in question at some previous time. Let us illustrate with reference to the case at bar. Let us suppose that defendant, while on the stand, should have testified directly that one week before the killing he felt very friendly towards the deceased, in fact loved the deceased and they were getting along well. What weight would the jury have given such an assertion? Evidently very little. But suppose that, instead of this unsatisfactory and apparently unreliable evidence, he should offer to prove, as he did, that a week prior to the killing he had made declarations himself to her and she had made declarations to him, and the two together had made declarations to third parties, indicating a friendly and affectionate state of mind. Would not the jury have given greater weight to this testimony, showing his state of mind at a time before his adverse interest had accrued? Again let us suppose that Mr. and Mrs. Drinkard had heard a conversation between defendant and deceased and, in this conversation, the parties had exhibited lack of affection for each other and the conversation had illustrated the fact that they were getting along badly. Evidently, the testimony would have been admitted by the court to support the theory of the State on the question of motive. In fact, just such testimony was admitted by the court from the mouths of other witnesses. If a conversation between defendant and his wife, indicative of lack of affection, was admissible, then and upon what theory either of logic or law, should a conversation between them, indicative of affection between them, be rejected? If it was proper for the State to use such evidence to establish *Page 407 the affirmative of the issue, why was it not equally proper for the defendant to use the same class of evidence to establish the negative of the issue? No sound reason can be suggested upon which this conversation should be condemned and rejected simply because it indicated a friendly instead of an unfriendly state of mind, for if it was relevant and admissible for the State to prove an unfriendly state of mind, it was equally relevant and material for defendant, in rebuttal, to establish a friendly state of mind. It is also true that, if the State could introduce the conversations of the parties in the presence of third parties to establish their unfriendly state of mind, then upon the same principle the defendant should have been permitted to introduce their conversations in the presence of third parties to establish a friendly state of mind. Such conversations are not admitted either on behalf of the State or of the defendant to establish the fact recited in the conversation, but are admitted as circumstantially indicating their state of mind. It is no valid objection, in this connection, to state that defendant himself was allowed to testify to the drowning incident. Defendant was not seeking by the witnesses Berney Brown and the two Drinkards to establish the facts with reference to the drowning incident. He was seeking, by this testimony, to establish a conversation between himself and his wife, in the presence of these parties, as indicating an affectionate state of mind at that time. The mere fact that they happened to be talking about the drowning incident was of no consequence. If they had been talking about politics or religion or any other subject, and if the conversation, viewed as a circumstance, tended to establish or illustrate a friendly state of mind between the parties, it would have been admissible, not for its testimonial value, as establishing the facts they were talking about, but merely as a circumstance to show the state of mind. Therefore, we say that the testimony of the defendant with reference to the facts relating to the drowning incident furnish no substitute whatever for this testimony. To so hold indicates confusion with reference to the grounds upon which such declarations are admitted. If we hold in mind the fundamental consideration that the declarations were offered and were admissible, not for their testimonial value as establishing the facts of the drowning incident, but for their value in illustrating a state of feeling, then we can see at once that the testimony of the defendant with reference to such facts furnish no substitute whatever for this testimony. Clearly, the trial court committed error in rejecting this testimony. A ruling to the contrary, we submit, is opposed not only to all legal precedent, but is opposed to sound reason and scientific fact. When, in a court of justice, it becomes material to investigate the state of affection of one person toward another, or to investigate their mutual state of affection, and their declarations indicative of this state are rejected, then the court not only overrules legal precedent, but also scientific fact and sound reason.
"And in this connection, and in considering this error of the court, it should be considered in connection with the rejection of the testimony of Mrs. Drake. If the testimony of Berney Brown and the two *Page 408 Drinkards just discussed had been admitted, and the testimony of Mrs. Drake had been admitted, that would have thus placed before the jury evidence strongly tending to show that just prior to the homicide, an affectionate state existed between these two parties. This would have tended strongly to rebut and destroy the contention of the State on the issue of motive. All the previous quarrels and disagreements and bad feeling introduced by the State related to a time antedating these conversations. We do not deem it necessary to speculate with reference to the effect of this testimony upon the jury in making up their verdict, but, even from that standpoint, it appears that the rejection of the testimony was highly prejudicial. It is unnecessary to again discuss the authorities. Those that we have referred to in discussing the testimony of Minnie Thomas are in point. Those that we have referred to in discussing the testimony of Mrs. Drake are even more in point. It is clear that the decision in this case overruled, without notice or comment, that of this court in the case of Early v. State, 51 Tex.Crim. Rep., at page 392. It is also contrary to the other decisions we have cited. See Morrison v. State, 40 Tex.Crim. Rep., at page 497; the two reports of the Cole case, heretofore referred to; Nelson v. State, 58 S.W. Rep., 107; Wigmore on Evidence, sec. 1730, also secs. 1732 and 1790; Wharton on Evidence, sec. 693, sec. 904, p. 1696, and sec. 948, p. 1828. See also the Pettit and Leabo cases we have heretofore discussed; Greenleaf on Evidence, sec. 102; Commonwealth v. Trefethen, 157 Mass. 180. We quote the following from Mr. Wigmore's work, section 1732:
"`To hold that every expression of hatred, malice and bravado is to be received, while no expression of fear, good will, friendship, or the like, can be considered, is to exhibit ourselves the victim of a whimsicality which might be expected from the tribunal of a Jeffreys, going down from London to Taunton, with his list of victims in his pocket or of a bench condemning to order, as Zola said of Dreyfuss' military judges.'
"The appellant, in his twenty-fifth, twenty-sixth and twenty-seventh assignments of error, as presented in his brief and in his motion for rehearing, complains of the alleged error of the trial court in failing to submit directly and affirmatively to the jury the question as to whether or not a third party committed the offense charged against the defendant. We respectfully submit that these assignments should be sustained, and we will discuss the matter briefly.
"We understand that the court, in its opinion, recognizes the general rule that, where there is in the record any evidence tending to support an affirmative defense in favor of the defendant, he is entitled to a direct and affirmative presentation of such defense to the jury. It is useless to refer to the many authorities so holding. To do so would be mere pedantry and a useless consumption of time and space. The rule is based upon the conceded fact that, unless such defenses are presented directly and affirmatively from the defendant's standpoint to the jury, the jury would be disposed, at least in some instances, to underestimate such defenses. If the trial court fails in his charge to submit defensive *Page 409 matter affirmatively to the jury, the jury may properly conclude that the trial judge attaches very little, if any, importance to such defense. This being true, no rule of practice is better settled both in civil and criminal cases that each litigant is entitled to have his theory of the case submitted in direct form to the jury. Now, in the case at bar, the defendant testified directly that this murder was committed by a third party. It is unnecessary to refer to his testimony on this subject in detail. It is set out in the court's opinion. His statement, made immediately after the homicide, was also introduced, and in this statement he charged a third person with the murder. The trial judge did not submit to the jury in direct and affirmative form the defense of the defendant thus raised that the offense was committed not by himself but by a third party. The trial judge, however, did charge the jury, as stated in the court's opinion, that, since the State had introduced the statements of the defendant, the burden of proof rested upon the State to prove beyond a reasonable doubt the falsity of said statement. The court holds, in its opinion, that this charge was a sufficient presentation of the defendant's defense that the crime was committed by a third party. We submit that, in this conclusion, there is clear error. To justify its holding, the court says, in its opinion: `What testimony is there that raises this issue? The statements of the defendant on the night of the homicide and his testimony on the trial. There is no other witness who testified to any fact which would raise that issue.' Again, we quote: `If the defendant's testimony on the trial had been different or had presented any new defense other than the explanation or statement given by him on the trial, or had there been any other testimony adduced on the trial other than the testimony of the defendant himself raising the issue that some other person committed the crime, there might be merit in this last contention of the appellant.' These quotations from the court's opinion, as well as the authorities referred to by the court, show that the court concluded (1) that there was no evidence in the record tending to show that this murder was committed by a third party, except the statement of the defendant, introduced by the State, and except his testimony on the trial; and (2) that, since the court, in his main charge, told the jury that after having introduced defendant's statement, the burden of proof rested upon the State to establish its falsity beyond a reasonable doubt, and, therefore, that it was not necessary to present any further charge on the subject, there being in the record, according to the court's opinion, no evidence other than the statement and testimony of the defendant tending to support the defense.
"The difficulty with the opinion of the court on this point is that it is based upon an incorrect premise. If there were no testimony in the record other than the statement of the defendant introduced by the State and his testimony on the trial, it is doubtful that the charge given by the court to the effect that the State must disprove the statement, would be a sufficient presentation of this defense. However, there is evidence in the record other than the statement and testimony of the *Page 410 defendant, tending to support his theory of this matter, and we will, therefore, discuss the point briefly.
"The State contended that defendant committed the crime. Its case was made out wholly by circumstantial evidence. It relied in the main upon a showing of motive, opportunity, the supposed absence from the scene of the crime of anyone else who might have committed it, the fabrication of evidence, the alleged effort of defendant to impose on those who came in response to his call, and his story of the crime, which the State contended was improbable, if not impossible, in itself. The defendant admitted his presence at the scene of the homicide at the time the same was committed. We have, therefore, the State relying (1) upon the actual presence of the defendant; (2) upon the weight of other circumstances tending to show his guilt. Now, on this defensive issue, the defendant testified that the crime was committed by a third person. He testified in detail as to how it was committed. Hard Daniels, deputy sheriff, and Mr. Denman testified that they looked around the house and yard for tracks, and that some forty or fifty steps from the house they found a pair of pants which some of the other witnesses identified as belonging to defendant. They also found tracks going to and from the house. They also found a knife belonging to defendant lying on the ground just a short distance from the pants. They followed the tracks for some forty or fifty steps further beyond the knife and then lost the trail. The witness Daniels further testified that, in an east direction from the house they found some other tracks going toward the house. Who made these tracks was not shown, except by the opinion of the witnesses. The State contended they were made by defendant. The defendant contended they were made by the third party who committed the crime. This court can not say, as a matter of law, which of these two contentions is correct. The mere fact that the tracks may have looked like those of the defendant would not authorize the court to conclude as a matter of law that they were made by the defendant. If the testimony of defendant that the third party committed the crime be correct, then these tracks may have been made by the third party. At any rate, this testimony was just as consistent with defendant's innocence as with his guilt. In fact, the jury might well have concluded that all the physical facts and circumstances introduced by the State were as consistent with defendant's guilt as with his innocence. The jury might have believed that the tracks were made by the third party; in fact, they might more naturally have believed that they were made by the third party than to believe the somewhat improbable theory of the State that defendant, after committing this crime, in order to cover his guilt, went out and made these tracks to and from the house himself. The evidence rather strongly indicates that appellant did not make the tracks after the homicide, if he made them at all. All of this testimony tended to support the theory of the defendant and the court is in error in stating in the opinion that there was no testimony tending to show that the presence of a third party at the scene of the homicide other than the testimony of the defendant. For the court to *Page 411 so hold amounts to finding as a matter of law that the tracks were made by defendant, and this can not be done. It is clear to us that the court has committed error in this matter.
"We will not refer to the authorities at length. However, Bond v. State, 23 Texas Crim. App., 180, is directly in point. In that case, the defendant made a statement, when he was found in possession of certain oats alleged to have been stolen, that he had purchased them. He testified to the same defense on the trial. The court gave the usual charge with regard to the explanation made by the defendant, but did not affirmatively present to the jury as a defense the question as to whether or not he purchased the oats. It was held that this failure was reversible error. The doctrine was reaffirmed in Shuler v. State, 23 Texas Crim. App., 182; see also White v. State, 18 Texas Crim. App., 57-63; Irvine v. State, 20 Texas Crim. App., 12; Wheeler v. State, 34 Tex.Crim. Rep.; Kirby v. State, 49 Tex. Crim. 517; Wheeler v. State, 56 Tex.Crim. Rep.. The case referred to in the court's opinion supports our theory, for it recognizes that, where there is testimony in the record other than the statement of the defendant, the charge on explanations will not be regarded as a sufficient, affirmative presentation of the defense. There being, as we have shown, in this record other testimony tending to support the theory of the defendant that a third person was present and committed this crime, it is clear that this defense should have been affirmatively and not merely indirectly or inferentially presented and, in failing to do so, the trial court committed reversible error.
"There is another error to which we desire to briefly call the court's attention. The court instructed the jury that the testimony of Mrs. Beeman, concerning the statements made by Lloyd Brown to her, to the effect that the deceased spoke or talked after receiving her injuries could be received only in support of the credibility of the said Lloyd Brown's testimony and could not be considered as any evidence that the deceased, Sallie Brown, did in fact speak or talk after the injuries were inflicted upon her. This charge was clearly erroneous. The court, in its opinion, in effect concedes that the charge is erroneous, but determines that, notwithstanding the error in the charge, it must be held that the appellant was in no condition to complain of same. This latter theory is based upon the fact that the court gave, at appellant's request, a charge to the effect that the testimony of the witnesses Early, McGaugh and Beeman, concerning the statements of the witness Lloyd Brown, to the effect that the deceased made no statement after she was injured, could be considered only for impeachment purposes and could not be considered as any evidence that said deceased did not in fact speak and talk after the injuries were inflicted upon her. The court invoked the rule laid down in the case of Cornwell v. State, 61 Tex.Crim. Rep., and holds that, in requesting this charge, the appellant invited the error committed in the main charge. Now, we recognize that the rule of invited error is well settled and that it applies in criminal as in civil cases. We also believe that this rule, when applied, is a wise and *Page 412 salutary rule of procedure. We do not believe that any litigant should be allowed to trifle with the trial judge and, after having induced the trial judge to submit the case to the jury on one theory of law, present to the appellate court a contention for reversal, based upon another and entirely different theory of law. We submit, however, that, without exception, where the rule of invited error has been held to apply, it has been held that the requested instruction must relate to the precise question and issue to which the charge complained of relates. For instance, a requested charge on the issue of provoking a difficulty does not invite the trial court to give an erroneous charge on the issue of mutual combat. An erroneous charge requested by defendant on manslaughter does not invite the court to present an erroneous charge on murder. In every case, the requested charge and the charge complained of must relate to the same question. Now, tested by this rule, it is evident that the court is wrong. The charge relating to statements made by Lloyd Brown that his mother did not speak after her injuries was demanded and must have been given even if Mrs. Beeman had never lived or never testified. Lloyd Brown testified on the trial that his mother did speak after she was injured. Therefore, the testimony of these witnesses to the effect that he told them she did not speak was properly receivable by way of impeachment. That testimony is clearly separable from the evidence that was given by Mrs. Beeman. It is also clear that the charge in respect to such impeaching evidence was required to be given and that if it had not been given in substance, the case would have probably been reversed even in the absence of such request. See Henderson v. State, 58 Tex.Crim. Rep.; Bennett v. State, 43 Tex. Crim. 241. If there can be said to be any error in the requested charge on this subject given by the court at the suggestion of counsel, then there can be no answer to or complaints of the charge in respect to the testimony of Mrs. Beeman above set out, for the reason that the two charges considered by the court were with reference to wholly unrelated subjects. Suppose the requested charge does go too far in respect to impeaching testimony? On what theory or rule of law did this justify the trial judge in giving an erroneous charge on supporting testimony? The Cornwell case does not support the court's opinion on this point. Again, there is another reason establishing the error in this charge. Under the peculiar circumstances of this case, the statements of Lloyd Brown testified to by Mrs. Beeman was original testimony, admissible as res gestae declarations. That testimony offered as supporting testimony may often be received as coming within the rule of res gestae is elementary. See Wharton's Criminal Evidence, volume 1, page 1024. While the testimony of Mrs. Beeman with reference to the statements of Lloyd Brown were admitted as supporting testimony, still such statements were admissible as res gestae. The statement was made the night of the tragedy within a short time after it occurred and within a very short time after the young lad, Lloyd Brown, became acquainted with the injury to his mother. The statement was made under circumstances that rebut any suggestion that it *Page 413 was inspired by appellant. Everything in the record tends to show that the declaration was an instinctive expression of unpremeditated truth, voicing itself through the innocent boy. There is no arbitrary limit of time within which res gestae declarations are confined. `They vary with each particular case. They need not be coincident as to time if they are joined by the existing feeling which exists without break or let down from the moment of the event they elicit.' McGee v. State, 31 Tex. Crim. 71; Bronson v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 175. In this case the court says: `She (Mrs. Beeman) was called to the home in about half an hour or such matter after the injury had been inflicted and that Lloyd Brown told her about his mother making the statement to him that he had testified to on this trial.' Statements made by deceased an hour and a half after being injured have been received. Lewis v. State, 29 Texas Crim. App., 201, and the books are full of cases where the mere question of time has been considered as an unimportant circumstance. It seems to us that, in this case, considering the short time, the necessary and inevitable excitement of the boy, his extreme youth, the lack of any motive on his part to fabricate a story, and the lack of ingenuity to conjure up a statement of this kind, that, both on reason and authority his declaration was admissible as res gestae. This being true, the charge of the trial court that it could be considered only as supporting his credibility was clearly erroneous. That the error was harmful there can be no doubt. Among the things which the State sought most strongly to prove was the utter impossibility of Mrs. Brown speaking after her injuries. This was a contested issue in the case. Another issue vitally important was whether Mrs. Brown sat up. The State's evidence was, in substance, that, with her injuries, it would have been impossible for her either to have sat up or to have spoken. Brown said that she did both. Lloyd said, in a very short time after the injuries, that she did speak. If the jury had believed Lloyd's declaration, then it would be a strong inducement to them to credit Brown's statement and find against any charge suggesting a theory of fabrication. We would respectfully submit that, on account of this error, the judgment should be reversed."