Renewed complaint is made of the rejection of testimony as to what was said to the sheriff by appellant's wife at the time she gave him a pistol after his arrival at the scene of the homicide. The bill of exceptions presenting the complaint plainly shows that the defense sought to elicit hearsay testimony, both in regard to what Mrs. Davis said on her own account, and what she said to the sheriff as told her by her daughter. Nothing in Felder v. State, 23 Texas App., 477, — cited by appellant, — supports the admission of such testimony, *Page 137 but appears to hold the contrary. The defense brought out the fact that Mrs. Davis gave the pistol to sheriff Reed; also that they wanted to prove what she then said to him. The record shows that all she knew about the matters thus sought to be brought out, had been told her by her daughter, the wife of deceased.
Earnest Lovell swore that he heard the shooting, saw appellant going across a field, saw the wife of deceased going to where deceased lay, was going there himself when she reached the body; saw no weapon of any kind about deceased, nobody picked up a weapon about said body that he saw. We see no ground for objection to the question by the state to this witness: "State whether or not anybody picked up a weapon about the body."
Earnest Lovell was not a party to the shooting, and his motive or reason in not going to where "They" (parties thus not shown in the bill) were having a row," was properly held not a material matter of inquiry. This statement applies also to the inquiry made by the defense, of said witness, — complaint of which appears in bill of exceptions No. 5.
With reference to the attack on our disposition of his complaint in bill of exceptions No. 6, we observe that appellant's wife was a rather strong witness in his behalf. We think it would be proper for the state to ask her on cross-examination questions which would tend to shed light on her attitude and feeling toward deceased. We see nothing in the question complained of in said bill which could call for an answer reflecting malice on the part of appellant himself.
We have again reviewed the predicate question and the impeaching answer of Mrs. Roma Lovell, complained of in bill of exceptions No. 7, and are not able to find any failure of the predicate in naming time, place or persons, — or in the answer, — as not responding substantially to the predicate.
Appellant having testified, without objection, that after his daughter married deceased they appeared to be affectionate and happy and to love each other, the complaint in bill of exceptions No. 8 of testimony of the mother of deceased that he and his wife stayed with her awhile after their marriage and got along well, we think to be without merit, and to have been properly disposed of in our former opinion.
Not being able to agree with appellant in any of the matters raised, the motion for rehearing is overruled.
Overruled. *Page 138