The appellant was convicted in the Criminal District Court No. 2 of Dallas County for the offense of murder, and his punishment assessed at ninety-years in the penitentiary.
The record discloses that the appellant was charged by indictment with murdering R. B. Parsons, a deputy sheriff, in Denton County, on the 6th day of August, 1925, and that the venue of said cause was changed to Dallas County.
Briefly stated, it was the contention of the state that the appellant, with malice aforethought and without cause or provocation, shot and killed the deceased, with a pistol, upon the streets of Denton. It was the contention of the appellant, and he so testified and introduced evidence in support thereof, that the deceased had his pistol drawn prior to the time that he, appellant, drew his pistol and began to shoot, and that he killed deceased in his own self-defense.
The attorneys representing the state, in a supplemental brief filed after the submission of this case, and supported by affidavits of the trial judge and district clerk, object to our consideration of the statement of facts filed herein, because there was no duplicate statement of facts presented to the trial court and filed with the clerk thereof. The matters presented in this supplemental brief come entirely too late for our consideration, and if the state desired to raise such objections, same should have been *Page 154 brought forward, prior to, or upon, the submission of the case, and at a time when the appellant would have been afforded an opportunity to answer the allegation, or correct the alleged defect, if necessary. There is no contention made that the original statement of facts presented in this court is incorrect, but it is contended that by reason of a failure to file a duplicate copy in the lower court, this court should not consider the original statement of facts filed herein. To entertain the proposition suggested by the state at this late hour would be to invite the raising of such question even after the disposition of a case by this court, or at any time during the term thereof. We therefore decline to consider the questions herein presented for the reasons stated.
Bill of exception No. 1 complains of the action of the court in permitting the state's witness, Rayzor, to testify, over appellant's objection, that between the 20th and 25th of June, prior to the killing on August 6th, in a conversation with appellant the latter stated to him, "I understand those sons-of-bitches said I robbed the Krum bank, and I want you to tell them to come and get me." The witness further testified, "He then displayed another gun. Then with those two guns, he stuck one of them between my feet and the other in my stomach." The appellant objected to said testimony upon the grounds that it was an effort upon the part of the state to prove that the defendant was a bad man generally, and an outlaw who would rob banks and carry pistols; and because same was immaterial, threw no light on the killing, and amounted to proof of extraneous crimes and of an assault upon said witness, Rayzor. The court qualified this bill by stating that in addition to the statement contained in the bill, the witness also testified that the appellant said to him, "If you see any of those damned officers, tell them I am going home and tell them to come and get me. This is what I am going to smoke them out with." The court further states, "This constituted a threat against a class, to-wit, officers, and made the testimony admissible." We are of the opinion that all of said testimony relating to the officers was admissible, but that portion of same to the effect that the appellant stuck one gun between the witness' feet and the other in his stomach was not admissible for any purpose and would only tend to show another and a different crime or offense committed by the appellant upon said witness, which was in no way connected with the homicide. This character of testimony, where it could only show or tend to show that the defendant was a criminal generally, has been held inadmissible by this court in many instances. See Branch's *Page 155 Ann. P. C., Sec. 166, p. 99, paragraph 4, citing Gilbraith v. State, 41 Tex. 567; Williamson v. State, 13 Tex.Crim. App. 518; McClary v. State, 165 S.W. 572; Gray v. State,178 S.W. 337, and many other authorities.
Bill of exception No. 2 complains of the action of the court in permitting the witness, Rayzor, to testify to the above conversation with appellant, as set out in bill of exception No. 1, with the exception that bill No. 2 leaves out that part of the testimony relating to the assault by the appellant on said witness, Rayzor. What we have stated relative to bill No. 1 will apply to this bill also, but we might say that the objections raised in bill No. 2 go more to the weight than to the admissibility of the testimony complained of.
By bill No. 3 appellant complains of the refusal of the court to permit him to testify as to why he did not go to the sheriff's office and surrender after the shooting, and why he went home, and to explain his action in refusing to go and surrender, and his reasons for not doing so, to the effect that he believed there was a conspiracy existing between certain peace officers to kill him, and that if he didn't go home and get protection they would kill him; and that he telephoned a State ranger at Austin and the sheriff at Fort Worth, telling them to come to Denton for the purpose of giving him protection; and that he did not leave the scene of the killing with a view of fleeing from justice, but went to his home to await an opportunity to surrender when his life would be protected. This bill further discloses as a certified fact that prior to the time about which the appellant proposed to testify as above set out, the state had introduced several witnesses who "testified to the effect that the defendant had not surrendered after the killing, but left the scene of the killing in an automobile in the opposite direction from the courthouse, and said that he would not surrender and threatened the lives of the officers." The bill further recites and states that the witness, Wallace, in behalf of the state, testified: "After Martin emptied both his pistols he reloaded the pistols. He stepped back, I suppose, four or five steps I suppose and made a little talk; he said, 'My name is W. A. Martin,' and says, 'You laws stay away, don't come down this way.' * * * 'You tell the laws I am going home and for them to stay away from there, that I will surrender at the proper time.' Then he got in his car and drove away." The witness, Hines, according to the bill, testified for the state as follows: "He (Martin) said to some of the men: '* * * My name is Martin,' and then he looked up the street and said: 'I don't want any of the law to come down here.' He *Page 156 might have said 'I don't want a damn one of the officers to come down here'."
It will be observed from these statements that the state had introduced evidence showing, and tending to show, flight upon the part of the appellant, and that such testimony was introduced prior to the time when appellant took the witness stand for the purpose of explaining his actions and his intentions in rebuttal of the state's theory of flight. We think the court erred in excluding this testimony. Arnold v. State, 9 Tex.Crim. App. 414; Ballenger v. State, 63 Tex. Crim. 657,141 S.W. 91.
In the Arnold case, supra, in passing upon a similar state of facts, wherein the trial court refused to permit the appellant to introduce evidence in explanation of what the state contended was flight, this court, through Judge Hurt, stated: "Under every principle of law and justice, this evidence was admissible; nor was there anything in the objection of the District Attorney 'that the proof must be made by Wright himself.' Defendant had a right to prove it by any competent witness — his wife, or any other person. Indeed, if he had, at the time of leaving, stated it himself, it would have been admissible."
Judge Davidson, in the Ballenger case, supra, and under a similar state of facts, wherein the court refused to admit similar testimony, after citing the Arnold case, supra, and many other authorities, quoted the opinion of the court in the case of Brady v. State, 65 S.W. 521, as follows: "We are of opinion, this evidence was admissible, under the circumstances. The state had proved against appellant, and relied upon, his going under an assumed name as a circumstance against him, in connection with his flight and other matters incident. Wherever one party relies upon a fact, the opposite party has a right to rebut that fact or circumstance. So, in this case, the state having relied upon appellant's flight to Jackson, and his going under an assumed name, and carrying on his business in that way, appellant was certainly entitled to negative any inference suggested by this testimony. If it was not a fact against appellant, the state used it as an adverse fact." Many authorities are cited in support of this doctrine.
For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and the cause remanded, and it is accordingly so ordered.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 157
ON STATE'S MOTION FOR REHEARING.