Appellant now contends that the res gestae statements of Lelia, testified to by Nellie, was secondary evidence and inadmissible because the child Lelia herself did not testify, contending that her testimony would have been the best and primary evidence, and that Nellie's was secondary or inferior. He is mistaken in his contention. Res gestae testimony is not secondary or inferior testimony. Presiding Judge White, in Cook v. State, 22 Texas Crim. App., 524, says: "This rule as to res gestae overrides all other rules known to the law governing the admissibility of testimony," and in that case held that the res gestae declarations of the wife were admissible against her husband, notwithstanding the statute which prohibits the wife from testifying against the husband. Robbins v. State, 73 Tex. Crim. 367, 166 S.W. Rep., 528; Shamblin v. State, 75 Tex. Crim. 491. The reason the child Lelia did not testify was explained in the original opinion.
The offered testimony of Genie Marion which was excluded by the court did not show, or tend to show, any hostility, bias or otherwise affecting Nellie against her father. It would only have tended to have shown that she may have had some animosity against her sister Genie, but under no phase of the case was it admissible to show that Nellie had any feeling at all against her sister Genie. That had nothing to do with any issue in the case.
We have again examined the case thoroughly, and as explained in the original opinion, the argument of the county attorney objected to, we are still of the opinion, showed no error against appellant, and we are of the opinion still that the testimony was not of sufficient force to show, or tend to show, that appellant was insane at or about the time he committed the alleged act. Therefore, the court's action in refusing to charge on insanity was undoubtedly correct, and we think there can be no question but that under the law it was neither necessary nor proper for the court to have given a charge on circumstantial evidence.
The motion is, therefore, overruled.
Overruled. *Page 485