Conviction for murder; punishment, five years in the penitentiary.
Upon rehearing, the original opinion is withdrawn and the following substituted therefor:
Appellant owned a large ranch on which he lived. No other dwellings were near his. Lundy rented land from appellant for rice cultivation, and his house was nearest that of appellant. The rice had been cut and shocked. Ponds, ditches, levies, laterals and much water were around the scene of the shooting, which was in Lundy's rice field not far from the edge of appellant's pasture. The growth between Lundy's field and appellant's house was sparce and scattered, in some places more than others. Appellant's wife was in Houston. She claimed that he came home from Houston on November 16th. No one else seems to have lived at appellant's house. No effort was made to show the presence at or around said house or premises on *Page 418 November 17th of any person save appellant himself. There was a hard rain on the night of the 16th.
On the morning of November 17th three boys were going across appellant's pasture toward Lundy's rice field. There was one shot gun in the crowd. Emory Fisher, one of said boys, was sixteen years of age and related to appellant. At a certain point Fisher took said gun, left his companions and went some distance away and shot at some ducks on a pond. Just after he fired, the sound of a rifle shot was heard to come from at or near appellant's house. Witnesses located the sound as coming from near a big gate south of the house, the boys being at the time in a general southerly direction from said house. The bullet from this rifle shot knocked up water in said pond near Fisher. He started back toward the other boys. Three more rifle shots were fired from apparently the same place. The other boys said they heard the bullets sing. One of them came so close to Fisher that he turned his head and called out to the others: "The old man like to have got me that time." Testimony was to the effect that from the big gate mentioned parties could be seen down near where the boys were. Evidently the party shooting could see Fisher, — as evidenced by the nearness of the bullets to him. The record is wholly bare of any showing that Fisher, from where he was at the time he was shot at, could not see who was doing the shooting. In bill of exception No. 2, complaining of the admission of the statement quoted above, it is said that in overruling the objection the court stated to appellant's counsel that he could not tell what the deceased saw or knew. The witness testifying to this statement was the first witness introduced on the trial, and testified to said statement almost in the beginning of his testimony.
It is observed that when called on to review rulings of trial courts in such matters, we must pass on the objections as same appear in the record, in the light had by the trial court when he was called on to rule, as far as we can get it. The objections to this testimony was, first, that the statement was not made in the hearing of appellant; second, that no person was named or identified in said statement. The first ground of objection was clearly untenable. The statement was plainly res gestae. The bullets were singing past the heads of Fisher's companions and going in close proximity to him when the statement was made. Four rifle shots were fired, as testified to, from near the big gate up by appellant's house. In five minutes thereafter, as estimated by a witness, another volley of five rifle shots were fired at the same boys, — and beyond question by the same *Page 419 party, who seemed at this time a little nearer the boys than when the first shots were fired. The first shot of this second volley sent a bullet into Fisher's back going through his body. As one of his companions bent over the fallen boy, another bullet whizzed between his legs and buried itself in the ground. Fisher was carrying the only gun had among the three boys. at the time both volleys of rifle shots were fired. As said above, Fisher knew appellant well, — was related to him. Appellant was sixty-seven years old and would reasonably be referred to. as an old man. The shooting was all from the general direction of appellant's house and at a party within the view of the one. shooting, and there seems no reason to believe but that the party shooting was likely within the view of Fisher when he made the statement. When the language used is such, or used under circumstances which make reasonably evident who the party is therein referred to, it would be admissible testimony, and its weight would be a question for the jury. Many cases appear where no name was used in the res gestae statements held admissible, but in such cases the surroundings sufficiently show to whom reference is made. Thompson v. State, 19 Texas App., 613; Kennedy v. State, 19 Texas App., 631; Means v. State, 10 Texas App., 23; Weathersby v. State, 29 Texas App., 278; McInturf v. State, 20 Texas App., 355; Shumate v. State, 38 Tex.Crim. Rep.; Foster v. State, 8 Texas App., 251; Lewis v. State, 29 Texas App., 204; Girtman v. State, 73 Tex.Crim. Rep.; Jeffries v. State, 9 Texas App., 602; Hardison v. State, 85 S.W. 1071.
The rule laid down in Wooley v. State, 64 S.W. 1054; Gray v. State, 47 Tex.Crim. Rep.; Clark v. State, 56 Texas. Crim. Rep., 297; Clements v. State, 61 Tex.Crim. Rep., and other cases, relates to the impropriety of receiving testimony reflecting the undisclosed motives and intentions of the injured party causing him to do certain things whose doing was relied on as affording justification for the alleged penal act on the part of the accused and has no application here. We have no doubt of the admissibility of said statement as against the objection urged.
The State offered testimony showing that somewhere in the neighborhood of ten o'clock on the morning of November 17th. an officer arrived at the scene of the shooting. He presently went up to appellant's house, finding no one at same. He looked around the premises. Out near the big gate referred to he found tracks made since the rain, but not distinct enough to enable him to identify. Just beyond the gate was grass, and on *Page 420 this grass some yards from the gate he found three freshly shot shells. The officer went in the house and found in the corner of a room a rifle. He expressed the opinion that the shells he found would fit this rifle. Looking further he found in the horse lot tracks showing where a man had saddled a horse, led him to the gate, and there gotten on him. This would indicate that the tracks in the horse lot were made after the tracks at the big gate, inasmuch as the officer testified that after observing the place where the man got on the horse, he presently saw appellant out east of his house on horseback having some stakes in his arms. He said he waved to appellant who came up, got off his horse, and when he did so the officer compared the tracks then made with those made by the man who led the horse from the lot, and he said they were exactly alike. The officer further testified that there was a telephone in the house. He said no one was called from said house after he got there, but that some thirty minutes later appellant's children began to arrive from a town some ten miles away where they lived. The record is bare of any showing of who gave these children the information concerning appellant which led them to come to the premises. One of them testified that he had heard that appellant was charged with the killing of Fisher. The record does not show that any charge had been made against appellant until after the officer took him away from the premises. Parties who examined the premises and made observations testified that from the big gate mentioned persons down in the vicinity of where the boys were could be seen.
The State offered testimony that on the day before this killing appellant had shot with a rifle at two men who were duck hunting on his place. Dickerson, one of these men, testified that he was calling ducks up to him; suddenly they flew; he raised up to see who had disturbed them, and appellant from some weeds shot at witness, the ball passing near his head. This witness said appellant was too far away to be shot at with a shot gun, so he saw nothing else to do except to fall down for protection in some mud and water behind a levee. From this point he heard a man named Stout shoot at some ducks and saw appellant go toward Stout and later shoot at him with a rifle. Dickerson also testified that at a prior time he and another were hunting ducks in the same vicinity, and appellant rode up, called them to him, cursed them and demanded to know what they were doing and if they did not know that he did not allow hunting on his place. He had his rifle in his hand. He said to the parties that he ought to have killed them *Page 421 from the hillside, but that he would give them a chance. He ordered them to get their decoys and get away. Witness said he proceeded to gather his decoys, and appellant, who had ridden some distance, fired with his rifle and broke the decoy in the hand of witness. Stout, the other duck hunter, testified that appellant shot at him while he was hunting in Lundy's rice field. Mr. Ivey testified that something like a week before this killing he and another were in appellant's place duck hunting. He said appellant, with a rifle in his hand, came up to them and wanted to know how they came to be in there and what they were doing. They told appellant that they were duck hunting and had permission from Mr. Lundy. Appellant told them Lundy had nothing to do with it, that the land was his, that he had them where he wanted them, and that he had a good mind to kill them and leave them lying there. Objection to all this testimony appears in several bills of exception, on the general ground that same related to separate, disconnected and extraneous offenses and transactions, and was hurtful and prejudicial to appellant.
This was a case of circumstantial evidence. The State's theory evidently was that appellant entertained malice and evil intent toward all hunters of ducks on his place, and that all this testimony was admissible as shedding light on appellant's intent in shooting at deceased who was hunting ducks on appellant's premises when he was killed. We would have no hesitation in saying that in a case like this, where the accused was charged with and convicted of the killing of a young relative of his against whom there is not a suggestion of ill-will or malice on his part save such as might arise out of the fact that deceased was at the time engaged in duck hunting on appellant's premises, — that proof of the fact that appellant entertained animosity and ill-feeling toward all parties who hunted ducks on his land, as evidenced by threats made by him against such hunters as a class, would be receivable in evidence. Such we understand to be the doctrine laid down in Miller v. State,31 Tex. Crim. 636; Mathis v. State, 34 Texas Grim. Rep., 39; Taylor v. State, 44 Texas Grim. Rep., 549; Helvenston v. State, 53 Texas Grim. Rep., 638; Hiles v. State, 73 Texas Grim. Rep., 21; Hill v. State, 35 Texas Grim. Rep., 375; Russell v. State, 84 Texas Grim. Rep., 245; Martin v. State, 107 Texas Grim. Rep., 164; Paulk v. State, 107 Texas Grim. Rep., 178; Scott v. State, 113 Texas Grim. Rep., 265, and other cases.
We do not think this principle applicable only to cases where proof of malice toward a class rests solely on words spoken by *Page 422 the accused. It would seem that if mere words can show such malice and evil intent, the deeds of the party could be put before the jury as stronger evidence showing his feeling and animosity in such cases. In Frazier v. State, 93 Texas Grim. Rep., 135, we quoted from Branch's Annotated P.C., sec. 2347 as follows: "Proof of other offenses is admissible if such proof is a part of the res gestae of the alleged offense for which defendant is being tried, or if it tends to show intent when intent is an issue, or serves to prove identity when identity is an issue, or when it is sought to show the guilt of defendant by circumstantial evidence and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory. Kelley v. State, 31 Tex.Crim. Rep.,20 S.W. 365; Dawson v. State, 32 Tex.Crim. Rep.,25 S.W. 21; Mixon v. State, 31 S.W. 408; Fielder v. State,40 Tex. Crim. 187. 49 S.W. 376; Camarillo v. State, 68 S.W. 795; Bright v. State, 74 S.W. 912; Perry v. State, 78 S.W. 513; Penrice v. State, 105 S.W. 797; Johnson v. State, 52 Tex. Crim. 202,107 S.W. 52; Snodgrass v. State, 67 Tex. Crim. 480,148 S.W. 1095; Stephens v. State, 69 Tex.Crim. Rep.,154 S.W. 1001; Serrato v. State, 74 Tex.Crim. Rep.,171 S.W. 1142; Johns v. State, 76 Texas Grim. Rep., 303,174 S.W. 610; Nowlin v. State, 76 Texas Grim. Rep., 480, 175. S.W., 1070."
In Meredith v. State, 115 Tex.Crim. Rep., Judge Morrow, referring to McKinney v. State, 8 Texas App., 640, quotes therefrom an excerpt from Bishop's Grim. Proc., as follows: "Mr. Bishop announces the correct doctrine to be, `that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet, whenever the evidence which tends to prove another crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible, and it is also admissible if it really tends thus (as in the facts of most cases it does not) to prove the act itself.' 1 Bishop's Crim. Proc., sec. 1067."
The above quotation, in the opinion of our Presiding Judge, correctly states the rule applicable in determining when, in cases of circumstantial evidence, testimony of extraneous offenses is admissible. It seems to the writer to have exact application in the case at bar. Evidence which shows this *Page 423 appellant to have repeatedly shot at and threatened other men whose only offense was that they were duck hunting on his place, at other times reasonably near to the time of the shooting here complained of, — certainly "tends to prove this one, not merely by showing the prisoner (appellant here) to be a bad man, but by showing the particular bad intent (to assault and shoot at duck hunters on his premises in the instant case) to have existed in his mind when he did the act complained of, and it is admissible if it really tends thus (* * *) to prove the act itself."
In Gardner v. State, 55 Texas Grim. Rep., 402, Judge Davidson uses the following language: "Extraneous and contemporary crimes are sometimes admissible, when they may tend to develop the res gestae, show the intent, system or connect the defendant with the crime for which he is being tried. But this is never the case where there is positive evidence introduced to support the state in regard to the cause on trial."
We said in Haley v. State, 84 Tex.Crim. Rep., and the same case on second appeal in 87 Texas Grim. Rep., 519, that testimony showing that the accused had poisoned his wife at a time prior to the killing of the deceased, for whose murder he was on trial, was admissible as showing motive and intent of Haley in the particular matter for which he was on trial.
Texas Jur., vol. 18, sec. 3, contains the following: "Evidence of the commission of similar offenses, although separate and isolated from the crime charged, is admissible for the purpose of showing guilty knowledge or intent, whenever the existence of such knowledge or intent is material and either disputed or doubtful. Indeed, the only mode of showing a present intent is often to be found in proof of a like intent previously entertained. Commission of other crimes may be shown under this rule only when the intent accompanying the act is equivocal, or where the intent otherwise becomes an issue in the trial, as where it is claimed that the act in question was free from a criminal intent, or was the result of mistake, accident or inadvertence." Many authorities are cited.
The State's purpose in the introduction of this testimony is not stated and can only be inferred as we read the record. It may be that the State by reason of its testimony showing that no other person was at the place of the shooting save appellant; the fresh tracks made since the rain out at the big gate near which were found the freshly shot shells; the going away from the house by appellant within a short time after nine rifle shots had been fired so near said house as to cause all witnesses who heard same to swear to their proximity thereto; the finding of *Page 424 the rifle in the house; the existence of a telephone there; the gathering one by one of appellant's children at his home from a distant town before any charge had been laid, and before even the first investigating party which went to appellant's premises, had gone away, or had any chance to report on what they found there; the res gestae declaration of deceased, — may have been offering this testimony which we have been discussing as bearing on the question of malice vel non of appellant in firing at said party, or it may have been offered on the theory that this being a case of circumstantial evidence, involving two defensive theories, viz.: identity of the accused and lack of intent to kill, that testimony of threats toward the class of duck hunters which embraced deceased, and of previous shooting by appellant at duck hunters, two instances being so near in point of time as to have occurred the day before this homicide, would be admissible as tending to show that appellant was the party who fired the shots. We do not know and can only surmise.
We do not think the principle referred to by us in Weatherred v. State, 272 S.W. 471, cited and relied on by appellant, to be the same as that here involved. The intent, guilty knowledge and malice of appellant were very material issues in this case. When this is true, under the authorities extraneous offenses whose facts are pertinent to the issue of intent, malice, etc., become in many cases important to prove. We think this such a case. We do not think the Wheatherred case, supra, to fall within such group.
There are other bills of exception which we have examined, but which we do not think present any reversible error.
The judgment of reversal is set aside, the original opinion reversing the case is withdrawn, this opinion is substituted, and the judgment of the trial court is now affirmed.
ON MOTION FOR REHEARING.