The admissibility of the testimony of the mother of the deceased, to the effect that some two hours before the deceased left her home she said that she was going to a haystack to meet Willie Porter, and from there was going to Nolanville to take the train to go to San Angelo, and that she supposed Willie Porter would bring a buggy or car, presents a question of difficulty. I have concluded that under the facts of the case it was admissible, under the rule of evidence that a declaration showing a state of mind it is excepted from the rule excluding hearsay. On the subject Mr. Wigmore, in Sec. 102, Vol. 1, in his work on Evidence, declares the rule to be that where the existence of a design or plan of one deceased is relevant to the issues involved in the trial, that the fact that such design or plan existed may be proved by the declaration of such person. In Sec. 1726, Vol. 3, the same author on this subject says: "(1) Where on a charge of murder the defendant seeks to prove that the deceased killed himself or that a third person killed him, this hypothesis is of course properly open to proof. Yet, as a matter of precaution, courts usually require something more than a single piece of evidence, and will not admit, for example, the mere fact that the deceased was melancholy or that a third person fled the country. But, assuming that, the data as to suicide or a third person's guilt are sufficient to be considered, and that the deceased's plan of suicide, or the third person's plan of killing, is one item herein, then the declarations of the deceased or the third person are a proper mode, under the present exception, of proving the plan." Mr. Wharton in his work on Evidence, Vol. 1, p. 495, also cites authorities on the subject. See Clanton v. Howard,205 Mass. 128, 91 N.E. Rep., 397. *Page 44
In this case the burden was upon the State to prove beyond a reasonable doubt that the deceased came to her death at the hands of appellant by violence used by him. Relying upon circumstantial evidence, it was necessary to exclude the hypothesis of suicide which was suggested by the evidence. The declaration of the deceased evincing a design to go to the haystack, thence to Nolanville, and thence to San Angelo, was a fact that might have been considered by the jury of some weight in negativing the theory of suicide. It was also a circumstance admissible to explain her presence at the haystack, which was testified to by some of the State's witnesses. See Wigmore on Evidence, Vol. 3, p. 2222; Ex parte Blumer, 27 Tex. 734. The difficulty in deciding the question arises from the fact that the declaration of the deceased mentioned is inseparably connected with the appellant, and tends to lead the mind to the conclusion that deceased's design was influenced by an agreement with the appellant, and to thus indirectly establish by hearsay, the conduct of appellant. Under the authorities, however, it seems that the declaration proved was admissible.
In my opinion the impeachment of Pete Porter was improper. It appears that when the sheriff and his posse went to the house where appellant was at night-time, that his brother, Pete Porter, asked the sheriff if there was anybody with him who would hurt Willie Porter. A predicate for the impeachment of Pete Porter was laid. He denied making this statement, and the State afterwards introduced testimony to contradict him. Granting that the remark was made, and that appellant heard it, I think it was not admissible against him. The doctrine that a statement made in the presence of an accused under circumstances which made it his duty to speak is admissible against him, I think cannot be justly invoked in support of the theory that the testimony in question was proper. The inquiry attributed to Pete Porter was not, in my opinion, such a remark as required the appellant to speak. The law on the subject is declared in Holden's case, 18 Texas Crim. App. 91, and other cases cited in the opinion written in this case. The proper application of the rule of law thus recognized, in my opinion, should result in the exclusion of the evidence. I am not satisfied, however, that the error in admitting it is one which authorizes a reversal. It seems to me to have been a remark which might naturally come from the brother of appellant without suggesting knowledge on his part of the homicide in question. A number of men coming to his house in the night-time, first making inquiry as to its being the home of another party, and then asking if appellant was there, would not unnaturally prompt inquiry of a brother of appellant as to the design of those making the inquiry, their conduct being such as to arouse the suspicion that their attitude toward Willie Porter was hostile. Without the knowledge of any crime it seems not unnatural that he should have made the inquiry. *Page 45
The instruction given by the court not to consider or be influenced by any remark or the discussion of any fact or circumstance by counsel, when such fact or circumstance is not in evidence, does not receive my full endorsement as stating a correct principle of law in a case of circumstantial evidence. In such a case the duty of the State to prove the guilt of the accused as measured by the law of circumstantial evidence is affirmative, and the absence of facts is available to the accused in argument.
This much is said in view of the opinion written by my associate in the case. The charge, however, is not subject to the criticism made in the bill attacking it, nor shown to have affected any argument made and in view of the opinion of the member of the court who has carefully read the record and written the opinion to the effect that the charge was not harmful, I am not disposed to hold it reversible error.
The record is a long one, and has come to my hands near the end of the term, rendering it impracticable for me to give it as careful review as is desired. From such review of it as I have been able to give I found no error which I regard as reversible. I, therefore, concur with my associates in its affirmance.