Appellant's counsel insists that at the time the original opinion was written the evidence was misinterrupted. It is his position that that part of the conversation between the witness Tenie Mitchell and the appellant in which appellant asked her "what was the matter" and she replied that "Julia said that he had drawn a gun on her" was so disconnected from the homicide upon which the prosecution is based as to bring it within the hearsay rule. With this in mind, we have carefully reviewed the statement of facts.
Appellant shot his wife Julia and a few minutes later killed Lucinda Daniels. The conviction is for the latter homicide. He was a young man and had been married but two years. Lucinda Daniels was the aunt of appellant's wife. In his testimony he sought to justify the homicide. He said that on the night preceding the homicide, he was attacked by four persons. The deceased was one of them. She had a pistol; two of the others had knives. He killed her the first time he saw her thereafter. He was going out of the gate when she called him to stop, cursed him and approached him over his protest. She had her hands under her apron and he thought she had a weapon and intended to kill him. He fired in order to protect his life. He said that he had a gun for the purpose of hunting some birds; that it was lying on the table; that his wife got possession of it and attempted to shoot him. He took the gun away from *Page 274 her and shot her. This too, was in self-defense, according to his theory. The killing was described by eyewitnesses thus: Appellant and his wife came from around the house, going in the direction of the fence. His wife was going fast. Appellant raised his gun and shot her. She fell, after which he shot her again. His wife's aunt, Lucinda Daniels, came out of the gate and started down the track, running and slapping her hands. He saw her and turned to meet her. She approached him with her hands raised. The gun fired and she fell. The witness Tenie Mitchell, who with her husband, lived in the same house as did the appellant and his wife, testified that after she and her husband had retired, appellant aroused them looking for his wife. The next morning he was seen by this witness at his home with a gun in his possession. The wife had gone on an errand, and upon her return, went to the store again. Appellant went to the home of his aunt. Later both of them returned. The wife was crying. The witness had a conversation with her; also with the appellant. In the conversation with the witness, he asked her "what was the matter" and she told him that "Julia said that he had drawn a gun on her." His reply is set out in the original opinion.
The witnesses were negroes. The testimony is only partially in narrative form. It is our understanding of it that the two women were shot within a few moments of each other and that from the time the appellant first appeared at his home, not more than half an hour elapsed until the deceased was killed.
We held in the original opinion that the conversation in question was exempted from the hearsay rule because it was res gestae. Res gestae declarations may precede, accompany, or follow the transaction to which they relate, but it is only when they are wrought up into and emanate from it that they can be rightfully admitted as res gestae. Wharton's Crim. Ev., Vol. 1, p. 502. Apparently the testimony in question comes within this principle, and to our mind, its admission is justified by another rule of evidence. Appellant claimed that both women were shot in self-defense. From the testimony, it is to be inferred that according to his theory, they both attacked him upon the night before. But a few moments intervened between the shots that wounded both his wife and killed her aunt. The state of mind at the time he shot the deceased, Lucinda Daniels, was a proper subject of inquiry. The conversation with Tenie Mitchell was one of the means available to the State to enable the jury to determine the state of mind of the appellant in order that they might determine his guilt or classify the grade of the offense. The facts and circumstances immediately attending the homicide were admissible in evidence. Cyc. of Law Proc., p. 889, note 42 and cases cited. In the instant case, this included all that took place after appellant arrived on the scene of the homicide up to the time *Page 275 that he killed the deceased and would embrace all conversations touching the parties to the transactions in which he engaged. The transactions are so interwoven that the facts pertaining to one cannot be segregated from the other.
The motion is overruled.
Overruled.
SECOND MOTION FOR REHEARING. June 29, 1923.