Appellant insists that the matters mentioned in his bill of exceptions No. 2 evidence an error sufficiently damaging to his defense to require a reversal herein.
It is shown by the facts that the witness Cherry testified that about four months before the death of deceased, appellant *Page 538 was called to Cherry's phone by a person named Vivian, a sister of the deceased; that Cherry heard appellant's end of the conversation, and appellant afterwards told him what was said therein. In such conversation appellant told deceased's sister Vivian not to bring the deceased and baby home, that he might get drunk and kill both the deceased and her baby, appellant at such time seeming to be doubtful that the child was his. When this testimony was offered appellant's attorney "objected to the question and the answer that it called for, for the reason that the matter was remote and that there was testimony already developed in the case about this conversation, and the birth of the baby would have been in December, some seven or eight months prior to the date of this offense, and that the person doing the talking on the other end of the line had not been identified, and because an answer to said question would be prejudicial." Whereupon the court permitted the witness to answer in the statement herein above outlined. The qualification to the bill shows that appellant at the end of the telephonic conversation detailed practically the same statement to Cherry in person, and gave him the name of the person who was talking to him over the telephone. If not too remote, we think the statement, if not in the nature of a threat, nevertheless indicated a state of mind of appellant relative to motive, as well as animus toward the deceased.
The only question herein presenting any difficulty lies in the objection as to whether such a statement was made at a time too remote from this killing. In the case of Hamilton v. State, supra, we find a statement by Mr. Wharton in his work on Criminal Evidence, Vol. 2, page 1706, sec. 911 (Tenth Edition) as follows:
"The relevancy of threats as evidence against the accused is not affected by the fact that they were near or remote to the homicide in question, as the length of time intervening is a circumstance to be considered by the jury in determining whether or not there was a connection between the threat and the homicidal act. The length of time intervening does not affect the relevancy of the testimony; but its nearness or remoteness to the act is a circumstance affecting its weight and credibility."
The Hamilton case also refers to the doctrine of an intervening reconciliation between the parties after the time of the reported statement and before the assault, and lays down the doctrine that there seems to be a conflict therein, and cites Brown v. State, 56 Tex.Crim. R., in support thereof, which *Page 539 case will not here avail as supporting unqualifiedly the doctrine suggested by appellant. This statement was made, according to the witnesses, from four to seven months prior to the killing; it was probably dependent on the fact of appellant becoming drunk, and then killing both the mother and the child. If there was any reconciliation attempted or effected same is not shown, save inferentially, and not even mentioned in the objection and exception thereto. It is not shown whether this was the first drunken spree since the time of the making of the threat; other testimony, however, allows the inference of the fact that appellant was rather unpleasant in his dealings when intoxicated, and that he had been drinking rather heavily just before the killing.
In the case of Upton v. State, 20 S.W.2d 794, we said:
"It is merely stated as a ground of objection, in appellant's bills of exception relating to the subject under discussion, that the threats involved were followed by perfect reconciliation. As stated hereinbefore, when the ruling of the trial court upon the receipt or exclusion of evidence is attacked, the correctness of the ruling will be presumed, in the absence of a showing in the bill of exception to the contrary, and the presumption in favor of the ruling is not overcome by a mere recital in the bill of the grounds assigned for opposing the ruling. Cavanar v. State, supra. (99 Tex. Crim. 446, 269 S.W. 1055.)
"That the threats involved shed light upon previous malice and premeditation on the part of appellant seems clear. In view of the fact that threats are not to be excluded because of lapse of time alone, and the further fact that the bills of exception * * * * fail to show that such threats were followed by reconciliation, we are constrained to overrule the assignment."
We do not think that there is herein shown enough matters evidencing reconciliation to cause us to invoke this lightly supported and recognized controversial rule relative to a perfect reconciliation to cause us to reverse this cause, or to convince us that error is shown by the admission of the statement by appellant that: "I might get drunk and kill them both." It was shown therein that just prior to the killing some words of an angry nature passed between appellant and deceased; then one shot was fired, followed by a scream from the deceased; in a short time another shot was heard, and another scream by the deceased; then a third shot, and no further screams. The deceased was found dead soon thereafter with a bullet hole in her forehead. Upon the arrival of the officers appellant showed *Page 540 them the body of deceased, and the bullet hole in her head, and said that "he had pointed the gun at her, and she had taken hold of the barrel of the gun and the gun went off. He said he didn't intend to shoot her, but that he was glad that he had." He made no explanation of the two extra shots, nor was it shown whether or not this was his first or a later drunken spree, following the statement herein complained of in this bill No. 2.
Besides the hole in the forehead, the witnesses testified to a bruise under the left eye, one in the lower part of the jaw, and two cuts in the cheek of the face, that were made with some blunt instrument, evidently not a person's fist. We confess that it would strain the credulity of an ordinary person to say that the extra shots and the bruises also came within the desired category of an accident. However, the careful trial court gave an instruction on an accidental killing, brought about possibly by appellant's statement to the officers that he had accidentally killed his wife.
Finding no error shown herein, the motion for a rehearing is overruled.