Insisting that we erred in holding admissible the declarations of Mrs. Norris to the defendant immediately after the homicide, appellant invokes the rule of the Casey case, 50 Tex. Crim. 392, 97 S.W. Rep., 497, the Ex parte Kennedy case, 57 S.W. Rep., 648, and the Felder case, 23 Texas Crim. App., 477, but an examination of these authorities shows that they are not stating the law of declarations and statements made to the accused under such circumstances as to make them res gestae and to call for a response or reply. In the Felder case, supra, Judge Hurt discusses and recognizes the soundness of holding admissible a remark or exclamation made to the accused or heard by him and calling for a response. Authorities are numerous holding admissible statements to the accused of such character as to call for a denial or a reply. Jeffries v. State, 9 Texas Crim. *Page 119 App., 598; Holden v. State, 18 Texas Crim. App., 91; Browning v. State, 26 Texas Crim. App., 432; Humphrey v. State,47 Tex. Crim. 262; Jennings v. State, 42 Tex.Crim. Rep.; Rainer v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 735; Ryan v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 878; McKelvey v. State, 69 Tex.Crim. Rep., 155 S.W. Rep., 932; Knight v. State, 64 Tex.Crim. Rep., 144 S.W. Rep., 984; Keeton v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 404; Wynne v. State, 59 Tex.Crim. Rep.. In determining the admissibility of evidence, the question of its truth does not enter. Mrs. Norris, in the statement objected to, charged appellant with killing her husband, speaking of him in said statement as "My darling" and as being the friend of the accused, but each statement was an accusation, and a reply was called for from appellant. There was nothing of such inflammatory character in the language used in that connection as called for a reversal at the hands of this court. Deceased was the husband of Mrs. Norris, and the evidence other than the said statement amply showed that they had three little children. No question is raised as to the nearness in point of time of the statement to make sameres gestae. Discussing when and what may be introduced under this character of evidence, Judge Davidson in Castillo v. State,31 Tex. Crim. 151, says: "When res gestae, it is original primary testimony and can be introduced as such.'
Witness Jones for the defense gave evidence of statements by Mrs. Norris when he arrived at the scene, which was contradictory of her testimony. As ascertaining the circumstances as well as the mental condition of Mrs. Norris at the time such statements were made, it was not error to permit the State to ask Mr. Jones on cross-examination questions which sought fully to bring out the fact that Mrs. Norris was greatly agitated and was weeping constantly and was in such condition as to make her unable to talk, and that she was lying prostrate upon the body of her husband at the time the conversation took place, and that she and her little children were weeping, and that what statements she made were interspersed with sobs and tears.
Referring to appellant's complaint that the State was permitted to ask a witness for the defense on cross-examination if it was not true that each member of the jury was not a larger man than deceased, we can see no serious objection to such question. If a witness be testifying as to the relative size of deceased, or any other person, we think he may be properly called upon, in order that the jury may have an ocular demonstration of his ability to correctly estimate the size of the person attempted to be described, to express his opinion of said party as related to the size of some other person than in the presence of such jury. Ordinarily one's testimony as to the size of another would be based upon his observation and judgment from observing and seeing the party testified about. The accuracy of such testimony is to be tested and passed upon by the jury. *Page 120
Reverting to the complaint that in the argument of the State remarks were made that appellant was going around and telling his various witnesses, who were named in said argument, what to swear, we observe that the State witness Hill testifying in rebuttal and upon a predicate laid while defense witness Mrs. Black was upon the stand, testified that Mrs. Black told him that "Frank Taylor (appellant) had been up here and told me what he wanted me to swear in his case;" that she said "he had been up there and told them what he wanted them to swear in that case." In this condition of the record we do not think the argument complained of seriously objectionable.
Appellant complains of various arguments of the State's attorney in that he called the wife of deceased "A poor little poverty, grief stricken widow," and also "A country raised widow," and also said that no verdict rendered could restore the deceased to life or aid this widow and her three children. In each of these instances it seems the court at the request of appellant instructed the jury not to consider the argument. We confess our inability to see how appellant could be injured, and refer to the language of Judge WHITE in the Pierson case, 18 Texas Crim. App., 564, as expressing our view:
"As to the other remarks of the district attorney which were objected to, we can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the State, in the name of law, justice and right, in the name of society, in the name of the widow and children of the deceased. We see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the State; he had outraged law, justice, right and society; he had clothed the wife in widow's weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment.
"It has become quite common to except to the remarks of counsel for the State in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The State has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us, 1, that the remarks were improper, and, 2, that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant's rights."
Appellant again urges that his special charges asked after argument had ended, should have been given. Article 737a Vernon's C.C.P., appears mandatory. Same says that after the argument has begun, "No *Page 121 further charge shall be given to the jury unless required by the improper argument of counsel, or the request of the jury, or the introduction of other testimony." Unless the party seeking such charge at this stage of a trial, affirmatively show a right thereto under one of the conditions named by said statute, its refusal would not be held error. From the bill of exceptions taken to such refusal in the instant case, we gather that the State's attorney argued to the jury that under the facts before them appellant had no right to kill deceased if he could have averted the tragedy by other means. This position was combatted by appellant, and as supporting his position the special charges were asked seeking to have the jury told that under a given state of facts appellant did not have to resort to other means to avoid the killing.
If this court should lay down the rule that when a charge was duly presented to the accused and no exception taken to a matter, not of fundamental right, to which attention might be later directed by the argument; — that in such case special charges should then be given presenting such matter, — the flood gates would be opened. Under the facts in this record we are not prepared to say the argument of the State's attorney referred to was not proper. He had the right to argue that there was no self-defense in the case, even under the testimony of appellant himself, for the latter said while deceased was approaching the stall in the barn, in which appellant was, that he had something in his hand which appellant took to be a breast yoke, a double tree or stick of some kind, of which appellant could give no description; he further testified that deceased was at no time before he was shot in striking distance of appellant, and made no motion to strike or attempt to strike, and that while this condition existed appellant stepped out of the stall toward deceased and shot him. Appellant was six feet four inches tall; deceased a small man, being described by appellant's witness as "a little bitsy man." The only other eyewitness beside appellant was his hired hand who testified for the defense, and this witness said he saw nothing in the hands of deceased and saw him make no motion to strike appellant when shot or prior thereto. We are not at all of opinion that the State's attorney was indulging in "improper argument," as referred to in Article 737a, supra, when he may have argued that the record showed a state of facts under which appellant should have done other things before shooting. In cases where a charge is necessitated by improper argument, such as is referred to in said article of our statute, the law should not be restated, but the jury should be told that such argument is improper and they should disregard same.
We do not think upon a review of the facts of this case that they are such as to raise the issue of different phases of the law of self-defense based on the two shots fired by appellant. To our minds and under all the testimony they were so contiguous as to make it clearly a continuous transaction. *Page 122
If appellant desired the testimony of Mrs. Grayson, for whose newly discovered testimony he asked a new trial, he should have taken steps during the trial to procure the testimony of said witness, it having developed that she was present at the conversation between Mrs. Black and State witness Hill. Appellant should then have secured subpoena for her, and if necessary asked for a postponement in order to procure her presence. Upon proper predicate laid when Mrs. Black was testifying, the witness Hill gave evidence as to certain statements made by her which she had denied. The purpose of the testimony of Mrs. Grayson appears to be to support Mrs. Black in this matter. We think such supporting testimony occupies the same attitude, so far as a continuance or a new trial to obtain same is concerned, as would the impeaching evidence. Sec. 202 Branch's Ann. P.C., and cases cited.
The threat stated in the affidavit of Mr. Elliott as being newly discovered evidence, appears never to have been communicated to appellant, and in addition to reasons stated in our former opinion, we do not think such evidence of a character as would likely produce a different result upon another trial. The threat was made about two months before the killing, and the record discloses that appellant and deceased had been together subsequent to the making of said alleged threat, and no effort appears on the part of deceased to execute same.
We have again carefully considered this record and each of the matters urged by appellant, but being of opinion that same present no reversible error, the motion for rehearing will be overruled.
Overruled.