Appellant has filed a motion for rehearing in this case, in which he reiterates every ground in the motion for a new trial, but in an able and exhaustive argument filed he presents only one question, that is, the court committed reversible error in permitting the Hunts *Page 81 and others to testify that they had gone to the back of the garden to repair the fence, appellant's insistence being that their reason for being at this point was wholly unknown to appellant, and under the rules of law announced in Brumley v. State, 21 Texas Crim. App., 222; Ball v. State, 29 Texas Crim. App., 107; Clay v. State, 44 Tex.Crim. Rep.; Pratt v. State, 53 Tex.Crim. Rep.; Darnell v. State, 58 Tex. Crim. 585, and Bradley v. State, 60 Tex.Crim. Rep., this testimony was inadmissible. Counsel for the State has also filed an able argument in the case. As is to be expected, counsel in their respective briefs state the evidence from the viewpoint of each, and present a wide divergence. We are supposed to be wholly unbiased and to take a reasonable view under all the testimony adduced, and state such deductions as naturally arise from the entire record, therefore we can not adopt the statement of the case as made by either of them. George Hunt and others testified that he and his brothers were at George Hunt's house that morning, and that his wife came in and informed him that cattle had broken the fence and gotten in the field and eaten some corn and a part of the garden vegetables, and that he and John and Raymond Hunt had gone there to fix the fence. That while they were there Sank Hunt and Jack Langley drove up. The State also introduced evidence showing that the fence was fixed. Appellant objected to all this testimony. The court, in approving the bill, says the only objection made to the testimony was that it "called for a statement of facts which occurred in the absence of the defendant — that other grounds of objection stated in the bill were not made to the court, and have no place in the bill." It is thus seen that the objections now so vigorously urged in this court were not made at the time the testimony was offered in the trial court, and for that reason the bill would present no reversible error, for if that was all the objection offered, the testimony over his objection would be admissible as stated by the court as shedding light upon who began the difficulty. Hunter v. State, 59 Tex.Crim. Rep.. But if we consider all the objections now urged by appellant to this testimony, towit: "Because to admit such evidence to go to the jury would be to create the impression on the minds of the jury, that this defendant was being tried upon the real facts, and circumstances and not on the facts and circumstances as they appeared to the defendant from his standpoint at the time of the difficulty, and would be prejudicial to this defendant for the reason that it would be allowing the jury to have and consider as evidence in the case and against this defendant matters and things that could not and were not known to him before and at the time of the difficulty, and would be charging the defendant with reason and motive locked up on the minds of others, that could not be known to this defendant."
To get a correct view of this matter we must consider the testimony adduced on this trial. Coley Fisher, a witness for the defendant, testified at his instance: "I passed by George Hunt's place that morning in going from my home to Mr. Singleton. When I passed George Hunt's on my *Page 82 way over to the Singleton house that morning I saw Charley Hunt and someone whom I did not know on the gallery; Charley Hunt was the only one I recognized. Charley Hunt is George Hunt's son, but I don't know how old he is; I suppose he is about sixteen or seventeen years old. I saw four or five persons at George Hunt's when I passed there going to the Singleton place. I believe I said something to Audie Singleton with reference to seeing those parties there at George Hunt's; I said something to him about a crowd being there, or what was the matter there, or something of the kind." Then on cross-examination he testified: "I said that in going over to the Singleton's I passed by George Hunt's place that morning. I saw Charley Hunt out close to the lot, unharnessing a horse, but could not tell who the rest of the people were that I saw there. I saw three or four or five men there; I just noticed them when I passed there that morning, and I asked Audie Singleton something about the crowd being down there. I hid this because I didn't know but what there might be something the matter — I didn't know how it came that so many people were up there at the Hunt house." Obed Baker, another witness for defendant, testified: "I was present at the difficulty. When I left home that morning I went up to the Singleton's to bring Miss Lydia Singleton to church, and in going up to the Singleton's I went the road which passes by George Hunt's place. I saw several parties, men and women, on the porch at George Hunt's house when I went by there. I would think that there were six or seven people present at George Hunt's place when I passed, but I did not count them. It was somewhere between ten and half past ten when I passed George Hunt's house. After passing there, I went to Mr. Singleton's house, and when I got there I had a conversation with Audie Singleton, who met me out at the lot and asked me whom I had seen, or whether I had seen anybody down at Hunt's, and I told him I had seen a crowd down there, and told him where they were." On cross-examination he testified: "When I first got there, Audie met me out at the lot which is about twenty-five yards north of the house. Nobody was with him when he talked to me out there. He did not ask me anything out there at the lot, except whom I saw at George Hunt's, and I told him I saw a crowd down there. I know that there are a good many Hunts around there." Defendant himself testified: "Just before Coley Fisher went into the house, or after he had been in the house, he asked me if there was something the matter at the Hunts, or what that crowd was doing there. I told him I did not know anything about it, and I asked him a few particulars. He then said that he saw a crowd out on the porch down at Hunt's. When Obed Baker came up, I was out at the lot, and I stopped him there, even with the lot, and asked him if he had seen anybody down at George Hunt's, and asked him about the crowd, and where they were, and all about it; he told me that he had seen a bunch there on the porch, the same as Fisher had told me. On the Saturday before Russell Riley was talking with me at Liberty Hill, with reference to the Hunts; he was telling me about going down to old man Wesley Hunt's to see that *Page 83 postcard, and telling me something concerning the conversation they had had; he told me that the Hunts were mad at me and that I had better watch out — that he was afraid we were going to have trouble, and this, that and the other. I don't remember all he did tell me. I thought from what he told me, that the Hunts were mad at me, and while I really did not think that there would be any trouble, still I was watching for it too, expecting it, kinder. On the Saturday before this trouble, while I was at Liberty Hill, August Miller told me about John Hunt trying to borrow his knucks to give me a whipping with. He told me that John Hunt came to him and asked him if he had a pair of knucks, and that he (Miller) told John that he did not have a pair of knucks, but had one knuck, and John Hunt told him to bring it back to the thresher, where he was hauling oats to have threshed. So when he (Miller) got back, John Hunt came to him and asked him if he had brought the knuck, and he told him he had not. Miller also told me that John Hunt had said to him that he wanted to work my head over with the knucks. Tom Murray told me that he was with Russell Riley when Riley went down the road to Wesley Hunt's, and told me something concerning their fuss. Riley told me that the Hunts were mad at me about a postcard that had been sent to Ollie Hunt, and that the Hunts were going to get on to me the first thing I knew, and for me to watch what I was doing or something like that. My mother told me about hearing the Hunts talking over the phone; she said she heard them ringing for Bud Hunt to come over and bring his boy — that they were going to have some fun just before church time. I think my mother told me about this the evening before I had the trouble with the Hunts. George Maness told me that on Friday, July 4th, at the picnic at Liberty Hill, he had been with two of Mr. Baker's girls, and had taken them home that evening, and as he passed back by George Hunt's place Jack Langley came down the road and stopped him, and asked him (Maness) if he or any of the Singletons had sent that postcard to Ollie Hunt, and Maness told him they had not, and that then Jack Langley made some sort of a remark about it, and used some curse word; that about that time Charley Hunt came down the road, and said: `We are going to have a cleaning up,' and Jack Langley said: `Yes, we are going to get hold of Audie the first time we seen him down the road,' or some remark like that." He said this was all that he had heard that the Hunts or any of them had said about him. The record discloses that appellant was with the Hunts on Monday or Tuesday before the shooting; that he was with them again on Wednesday or Thursday before the shooting, and some of them helped him load his wagon; that he saw a portion of them at the picnic on Friday before the shooting took place on Sunday, and at all these times the conversation was friendly; however, he claims to have heard all these threats on Saturday. He said before leaving home on that Sunday morning after he had harnessed his horse, he went in the house and got his pistol, and put it in his pocket. That it shot .38 Winchester cartridges and could shoot six times. He then says he got in his buggy and drove *Page 84 down the road that he knew would lead him by where he had been informed the "Hunts had gathered," saying, "The reason I did go by there in spite of the fact that I was expecting trouble, was because I had business going that way; it was a public road, and I had a right to travel that way."
Thus it is seen that appellant himself and two of his witnesses say he knew before he left home that the Hunts had gathered at George Hunt's place; that he says he armed himself because of that fact and went the road by George Hunt's in spite of the fact he was expecting trouble. Then how could the fact that the Hunts were together be said to be a matter not known to him, or that they were on George Hunt's place, be said to be unknown to him? It is true he had been told they were at the house on the gallery, and he got in his buggy to deliberately drive by there notwithstanding he says he was expecting trouble, for he says he had a right to, but how could the fact that they were at the back of the garden instead of on the gallery have changed the appearance to him from his standpoint, and the further fact that they had fixed the fence, be an undisclosed motive, such as would affect his right of self-defense as viewed from his standpoint? The law is, as contended by appellant, that if one unexpectedly meets his adversary, and from his acts and conduct at the time, viewed in the light of previous threats, leads one to believe his life is in danger, such acts and conduct in the presence of defendant can not be explained by facts unknown to him, but the facts in this case present no such state of case. He says that they were sitting on the grass when he drove up; then how could the fact that they had fixed the fence prior to that time affect in the least his viewpoint? He says that he had been informed that morning that the Hunts were together; then he knew that fact before he went near George Hunt's place. What act or conduct of the Hunts or either of them was done or said in the presence of appellant that was sought to be explained? None. Did the fact that they had repaired a fence tend to explain or tend to make appearances different to defendant than if this testimony had not been admitted? No testimony was admitted that could be said to be unknown to appellant other than that they were at the back of the garden instead of being on the porch at the house, and this fact in and of itself, if nothing further had taken place, could or would not furnish a defense to shoot John Hunt. None of the cases cited by appellant have any application to a state of facts similar to the facts adduced on this trial.
In the Bradley case, supra, it was a case where appellant met the deceased at an unexpected place, his son having a gun, and it was held error to permit the State to prove that they had gone to hunt the cows and the son had carried the gun to shoot an owl. There is nothing in the record to suggest that the appellant in traveling the road he did, knew he would meet the deceased, and if meeting him, if his son being armed, and if from their acts and conduct on that occasion he was led to believe his life was in danger, it was correctly held, under the authorities, *Page 85 that the purpose in carrying the gun could not be shown to be an innocent one. In the Darnell case, supra, the evidence discloses that Masters, the injured party, there having been a misunderstanding between him and Darnell, walked up to Darnell, and put his hand on his shoulder, and said, "Mr. Darnell, what about" when the appellant shot. The witness was permitted to detail what he had intended to say, which would show an innocent intent in his acts and conduct, when from the past occurrences, appellant had a right to view the matter differently. Thus it is seen it was acts and conduct done in the presence of defendant that was sought to be explained away.
In the Pratt case, supra, appellant had testified that deceased had told him he was coming to the store next morning and break his neck; that when he saw him coming, from his acts and conduct he thought deceased was going to do him violence. It was held error to permit the State to show that he was on his way to see Medlin for an innocent purpose, of which appellant was unaware.
Under the facts in the Clay case, supra, it has no application to a case of this character. There is nothing testified to about an undisclosed motive, and would have no bearing on the issue of self-defense, nor who began the difficulty. It was testimony that tended to support not disprove any issue in the case. The case was reversed on the ground that the court erred in submitting the issue of provoking the difficulty.
In the case of Ball v. State, 29 Texas Crim. App., 107, the opinion says the appellant invoked the doctrine of apparent danger, and his right to act upon it as it appeared to him. The appellant testified that deceased had threatened him, had insulted him on the streets, and had tried to run him out of town; that a few hours before the killing deceased had threatened to horsewhip him; the appellant worked in the Hesperian office, and was standing near that office when deceased came out of the newspaper office and began cursing him and struck at him, when he shot.
The State's case was that the deceased came out of the newspaper office and started towards the postoffice and when he reached a point in front of defendant he stopped, but made no hostile demonstration. It is thus seen that deceased had gone to the office of defendant, after having made threats to horsewhip him that day, besides other threats, and on coming out of the office, when he saw defendant, he stopped directly in front of him, if he did no more, but according to defendant's testimony he cursed him and struck at him. Under this state of facts defendant had a right to believe that deceased was then in search of him, having gone in the office where appellant stayed, and it was held to be error to permit his wife to state when he left home he "told her he was going to the postoffice and would be right back." Thus making his mission innocent, when the facts in the case show appellant would have the right to believe that he was in search of him, appellant, to carry out the threat.
In the Brumley case, supra, the evidence showed that a horse belonging to appellant Brumley had been killed, that a complaint had been *Page 86 filed against one Williams, who was related to Isaac McAdams, who was afterwards killed. At the trial McAdams had a difficulty with the step-son of Brumley and accused him of swearing a lie. He also threatened Brumley's life, saying that he would cut his heart out, chew it up and spit it out. Brumley applied to the justice to have McAdams placed under a peace bond but it was not issued. A few days thereafter Brumley was at his home when McAdams came riding up, that Brumley spoke to him, saying good morning, when McAdams said, "You are a d___d theif, and I believe you killed your own horse," and started to throw himself off his horse on the opposite side to Brumley when Brumley shot him.
The State introduced evidence that instead of going to Brumley's house to renew the difficulty, as it would reasonably appear to Brumley, that McAdams was in fact on his way to his brother's house to borrow a wagon, a fact unknown to appellant. Held, error. The court in that case laid the law down as follows:
"It is a general rule that, `In cases where it is material to inquire into the demeanor, conduct, and mental feelings of an individual, at a particular period, the declarations made and the expressions used at the period in question are in their nature original evidence. . . . Verbal and written declarations are often said to be admissible as a part of the res gestae. As such they are most properly admissible when they accompany some act, the nature, object, or motives of which are the subject of inquiry. In such cases, words are receivable as original evidence, on the ground that what is said at the time affords legitimate, if not the best means of ascertaining the character of such equivocal acts as admit of explanation from those indications of the mind which language affords.' (1 Phil. on Ev., Cowman Hill's Notes, 3 ed., 1859, pp. 181-185.) . . .
"It is a rule not only statutory, but of almost universal acceptation, that a party who acts upon reasonable appearances of danger, and that whether danger is apparent, or not, is always to be determined from the defendant's standpoint. . . .
"Now in this case it was immaterial, so far as defendant's rights were concerned, what were the motives of the deceased McAdams in coming to the house of defendant on the fatal morning of the homicide; that is, it is clearly immaterial whether his mission was a peaceable one, towit: going to his brother's for the purpose of getting a wagon. Such motives and intention could not possibly have affected defendant's conduct, because the evidence shows that they had never been communicated to him, and that he was wholly ignorant of them. He should not be held in anyway bound by such undisclosed motives and intentions, and, so far as he was concerned, they could not throw any light upon the immediate transaction."
To the rule of law as laid down in this case we give our assent, as stated in the original opinion, but the facts in this case do not bring it within the rules of law as thus announced. McAdams had gone to Brumley's *Page 87 home, after threatening to cut his heart out, and by his acts and conduct would lead one to believe that he was about to execute his threat, and if he in fact was going to his brother's it was unknown to appellant. In this case John Hunt had not gone to appellant's home, but appellant had come to where he had been informed the Hunts were that morning, each and every one of the Hunts living on that farm, as appellant admits he knew, and in each and every one of the cases cited by appellant is where the deceased had gone to where he, the deceased, knew he would likely meet the appellant, and not where the appellant had gone where he knew he would meet his adversary, and had armed himself for that reason, unless it be the Bradley case, supra. However, it appears that in that case the State was allowed to explain why one of the Tuckers had a gun — that he had it to kill an owl, when appellant had testified that the father had just called the boy with the gun, saying: "Come on, Jim," at the time he picked up a stick to assault him, and this was held to be erroneous, because it was proper for the jury to pass on the case as it appeared to him at the time. In this case appellant testified John Hunt had a gun, but no witness sought to explain why John Hunt had a gun, if he had one. No explanation was introduced of any act or conduct or word spoken in the presence or hearing of the defendant, and the facts in this case bring it squarely within the rule announced in the case of Bozanno v. State,60 Tex. Crim. 507, wherein this court held: "The first is that the court erred in permitting the witness, Mr. Albert Dunlap, over the objection of defendant, to testify as to the movements and actions of the deceased, Denny Harris, on the day of the homicide and prior thereto, because said actions and movements were not in the presence of appellant and there was no testimony showing that he had any knowledge of said actions and movements of Denny Harris, and appellant could not be charged with the knowledge of such movements and the causes thereof. This witness testified in substance that deceased left her house about 11:30 o'clock the morning he was killed; that he came by where she was stopping with her daughter: that he had a lead horse; that he stated he was going out to George Foreman's to take the horse there, and that he was going to the next house to get a saddle. This, it appears from the statement of facts, was objected to for the reason that appellant was not present and the movements of Harris on that day can not be charged to him and is no evidence against him. The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations and intentions of a decedent are held not to be admissible against a defendant who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of thedeceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent. It can *Page 88 have, we think, no application to such a case as this, and the objection is wholly untenable."
It is true that self-defense was not an issue in that case, but it will be noted that the court holds that it is "Where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent." We agree that the authorities from the Brumley case, supra, on down to the present time all hold that "such apparent hostile movements" of the deceased, judged of from defendant's viewpoint at the time can not be explained away by showing them innocent and void of intention to give offense, if such was unknown to the defendant at the time. But as before said, no evidence was introduced or sought to be introduced that would tend in the least to explain or show any act, word or conduct of John Hunt or either of the others with him which was said or done in the presence of the defendant in this case was with an innocent intent. The fence had been fixed before he arrived on the scene he says, and they were sitting down talking; he knew they were together that morning on George Hunt's place, if his testimony and the testimony of his witnesses, Fisher and Baker, is to be believed, and no one disputes them on this point. No testimony was introduced showing why Jack Langley had his pistol, and no one explained why the Hunts or either of them had a gun or pistol, if either of them had one. The fact that John Hunt, or either of the other Hunts, had a weapon of any character is denied emphatically by all the witnesses introduced by the State who were present, and they say that John Hunt and his brothers were in their shirt-sleeves and had nothing in their hands. It is true that appellant and some of his witnesses say that John Hunt had a gun in his hands, but other of his witnesses who were present at the time would not testify that he had a gun on that occasion. Appellant also claims that he saw George Hunt with a pistol after he fell, while his two sisters and all his witnesses say that George Hunt was not armed; but if either George Hunt or John Hunt had a gun on that occasion, the State did not seek to introduce any evidence to explain why they had the guns.
As to threats made to do appellant serious bodily injury, we have hereinbefore copied what appellant says was told him. He says that George Maness had told him that Jack Langley and young Charley Hunt had said that his sister wrote the card, and they would "get hold of Audie (appellant) the first time he came down the road." He introduced Maness as a witness, and Maness says that he asked Langley and Charley Hunt if they believed the card came from the Singletons, and they said they did not, and this is what he told appellant, and they told him nothing about them going to get hold of him the first time he came down the road. Thus instead of proving such a threat had been made or communicated, his own witness, introduced by him to prove up this threat, says that instead of accusing any of the Singletons of sending *Page 89 the card, Langley and Charley Hunt stated that they did notbelieve it came from Mr. Singleton's, and all they said was about whoever sent the card to Miss Hunt, and this is all he told appellant.
In regard to the threat that John Hunt was trying to borrow brass knucks from the negro, A.C. Miller, and had said that he wanted to work his (appellant's) head over, John Hunt denied making any such statement, and that he had sought to borrow any knucks, but the negro testified that John Hunt had tried to borrow the knucks from him, and had said he wanted to put a new head on Mr. Singleton, but on cross-examination the negro admitted that at this time appellant and John Hunt were in the field at work together, and they had no fuss that day, and Hunt did not claim that appellant had done anything to him. It was also shown their after this alleged conversation, appellant and John Hunt and some of his brothers were working together with some oats, all of which facts were known to appellant before the shooting.
The only other threat is the one that he says Russell Riley told him — that he was down at old man Hunt's, and they had talked about the postcard, and the Hunts were mad at him and that he had better watch out. Appellant called Russell Riley as a witness, and he said he went down to Mr. Wesley Hunt's to see about the card, as his brother's initials were signed to it. That Wesley Hunt had said he believed the Singletons had written it, and whoever sent it was a low-down cowardly wolf and had to eat it. That this is what he told appellant. Wesley Hunt was the father of John Hunt and George Hunt, and was not present when the shooting took place; neither was John Hunt present when the remark was made about it. However, Wesley Hunt denies making any such remarks. Thus to put it in the strongest light for appellant, as the testimony he offers makes, was that Wesley Hunt, the father, had said that the Singletons wrote the card, and they had it to eat, and he was not present when the shooting took place; that Jack Langley and Charley Hunt had made unkind remarks about the one who wrote the card, at the same time saying that they did not believe the Singletons wrote the card, and that John Hunt had tried to borrow some knucks, saying he was going to put a new head on appellant, yet appellant knew before the shooting that when it was claimed this remark was made he was at work with John Hunt in the field, and no unkind words of any kind were spoken; that he was there on the Hunt farm, and no effort was made to do him violence; that at the 4th of July picnic (on Friday before the shooting on Sunday) he had seen some of the Hunt boys at the picnic and no unkind word was spoken, and these are all the threats he claims were ever made or communicated to him. He had been with them three times that week, going to Georgetown in a buggy with one of them, and meeting them twice when John Hunt was present, as well as several of the others, and they were all friendly on these occasions.
We have written at length on this motion for rehearing, because of the insistence of appellant, and the able argument of his counsel, but we can not and do not agree to the conclusions as to the facts shown as *Page 90 stated by them in their argument, and instead of drawing our own deductions from the record, we have been careful to state what the witnesses' testimony in their own language was, and under the evidence in this case we hold that while the rules of law as stated in the Brumley case, supra, have always been followed in this court, they have no application to the facts in this case, but under the evidence the case comes peculiarly within the rules announced in the case of Bozanno v. State, 60 Tex. Crim. 507, hereinbefore cited and quoted from, and the motion for rehearing is overruled.
And while perhaps it is unnecessary in this case, we will say in this connection that if one of the issues in a case is, "who began the difficulty," if the evidence does not tend to explain away any hostile acts, movements or words of the deceased in any case, but their weight and tendency would only bear on who began the difficulty, such testimony would be admissible on that issue alone, but would not be admissible if the appellant relied on such as hostile acts and conduct of the deceased in the light of previous threats and conduct to show that it reasonably appeared to him at the time from such acts and conduct that his life was in danger, and for this reason he shot.
The motion for rehearing is overruled.
Overruled.