According to the state's theory, supported by several of its witnesses, the appellant killed the deceased Parsons by shooting him a number of times with a pistol. The parties were upon the public square in the city of Denton. The appellant was riding in an automobile. Using an oath, he said to Parsons:
"You sent word you are going to kill me, and I am going to get you first."
Near Parson's body was a pistol, though, according to several of the state's witnesses, he did not have a pistol in his hand at the time he was shot. Appellant used two pistols in doing the shooting.
According to the appellant's testimony, he had received information from several persons to the effect that the sheriff of the county had caused Parsons to come to Denton in order that he might kill the appellant.
In connection with the statement made in the original opinion with reference to bills Nos. 1 and 2 and the explanation by the trial judge, we understand from the bill that the witness Rayzor was at his place of business; that the time was about two weeks after the Krum bank robbery. When the witness was called by the appellant, he had in his hand a pistol which he pointed towards the witness. The latter went out to the appellant's car and a conversation took place. Appellant said he had been to Oklahoma on a fishing trip and had just returned. He said:
"I understand those sons-of-bitches said I robbed the Krum bank, and I want you to tell them to come and get me."
From the witness we quote:
"He then displayed another gun. Then with those two guns, he stuck one of them between my feet and the other in my stomach."
Appellant said further:
"If you see those damned officers, tell them to come and get me. I am going home. If you see any of those damned officers, tell them I am going down home, and tell them to come and get me. This is what I am going to smoke them out with."
The witness said that the appellant had two guns in his hands and was "kind of waving them around."
The learned trial judge, in his qualification, stated that "this constituted a threat against a class, to-wit: Officers, and made the testimony admissible."
From other testimony we gather that the alleged robbery of the Krum bank took place on the 6th of June, and that the homicide *Page 158 occurred on the 6th of August. In his testimony, appellant stated that he understood that he had been indicted in two cases as an accomplice to robbery with firearms, and said that he did not know how many indictments for the offense of robbery were pending against him. Appellant also disclosed by his testimony the fact that there was enmity between him and the Sheriff of Denton County; that the deceased Parsons was a deputy and had been employed by the sheriff to take the life of the appellant. Appellant used two pistols in committing the homicide. According to his testimony and that of some of his witnesses, at the time of the homicide, the deceased had hailed the appellant and was in the act of drawing a pistol.
The defensive theory of the appellant, supported by his testimony and that of some of the witnesses whom he introduced, is self-defense. In meeting this defensive theory and in portraying the appellant's mental attitude towards the officers of the county in which he lived, we do not feel prepared to say that the learned trial judge was wrong in his statement that the acts and words of the appellant, as revealed by bills Nos. 1 and 2, were indicative of a threat against the officers of the county, including the deceased. The rule of evidence is well founded and supported in the declaration that a threat becomes admissible although it does not personate an individual, if it is fairly applicable to a class of persons embracing the deceased. See Wharton's Crim. Ev., 10th Ed., Vol. 2, Sec. 909, note 2.
The episode, as related by Rayzor, does not seem to us to have been an assault. Rayzor's testimony, of course, is controverted by the appellant. Tested by the language and conduct which Rayzor imputed to the appellant, it is believed that there was no grievance shown against Rayzor. Rayzor was selected by the appellant as the person in whom he reposed a threat and was the messenger by whom it was to be conveyed. It appears from Rayzor's testimony that the appellant was unlawfully carrying pistols. The display of the pistols and the use made of them on the occasion, considered in connection with the balance of Rayzor's testimony, impresses the writer as merely a demonstration by the appellant emphasizing and illustrating the meaning of his words. The acts and words were res gestae of each other and both were necessary to express the idea that he was endeavoring to convey to Rayzor and to have him transmit it to "those damned officers." The threats being relevant on the issue of motive (Wharton's Crim Ev., 10th Ed., Vol 2, Secs. 882 and 884), the manner in which they were made became admissible although their relation disclosed the commission *Page 159 of another offense. A recital of the words which Rayzor imputed to the appellant, without the accompanying acts, would have left his meaning obscure when he said: "This is what I am going to smoke them out with."
In bill of exceptions No. 3, it appears that the following question was propounded:
"Why didn't you go to the sheriff's office and surrender after the shooting?"
A general objection by state's counsel was sustained. Appellant's counsel then propounded the following question:
"Who did you surrender to?"
Objection was made and sustained, though the nature of the objection is not shown. From the bill, however, we take the following quotations:
"In explanation of this bill, it is to be remembered that prior to the time that the defendant took the witness-stand, several witnesses 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. Prior to the time that the defendant took the witness-stand, the following testimony was elicited by the state. The witness, F. S. Wallace, a witness for the state, on direct examination, testified in part as follows; (Statement of Facts, 24):
"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.' * * * Then Martin says: '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. * * * It was the same car that I saw him get out of."
R. P. Hines testified on cross-examination (Statement of Facts, page 53) as follows, said testimony being elicited by the state through County Attorney Elbert Hooper of Denton County:
"He (Martin) said to some of the men: 'I want you to come out here and look at this man's gun.' And he said, 'I am not going to hurt any of you.' Says, '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 might have said: 'I don't want a damn one of the officers to come down here.' "
"If permitted, the defendant would have testified that he *Page 160 knew of a conspiracy existing between certain peace officers of Denton County to kill him; that after the homicide he feared that if he did not go home and get protection that he would have been killed, and that the reason he did not go to the sheriff's office was because he knew the officers would not give him a chance but would shoot him on sight.
He would have further testified that the reason he did not surrender to the officers of Denton County and went to his home instead of the courthouse was because he knew he would be shot down without a chance. He would have further testified, and offered to do so, that he phoned for Ranger Captain Tom Hickman at Austin, Texas, and for Sheriff Carl Smith at Fort Worth, Texas, and had a conversation with these men, telling them to come rescue him; that he knew the Denton County officers would murder him and not give him a chance. He would further have testified, as indicated by question propounded to him by his counsel, that he did not surrender to the Denton County Sheriff, but surrendered to Sheriff Schuyler Marshall, Jr., of Dallas County, because his state of mind was such that he believed that Sheriff Fry of Denton County would murder him. He would have further testified that he did not intend to flee from justice, but merely to wait and surrender when his life could be protected."
We understand that in the preparation of the bill of exceptions, counsel for the appellant refers to certain pages of the statement of facts, namely, pages 24 and 53, for the details of the statements which were imputed to the appellant and to which reference is made in the general statement beginning with the words: "In explanation of this bill, etc." An examination of the pages mentioned discloses that the state's witness Wallace and the defendant's witness Hines did give the testimony set out in the bill and that at the same time appellant stated:
"You tell the laws I am going home and for them to stay away from there, that I will surrender at the proper time."
The fact that the appellant had telephoned to certain persons in Austin and Fort Worth and had conversed with them and the details of his conversation was manifestly not responsive to the questions propounded. Moreover, that part of the appellant's proffered testimony to which we have just referred was obnoxious to the rule against self-serving and hearsay declarations, and for that further reason its rejection was not error.
The statements imputed to the appellant in the bill of exceptions were received without objection and were admissible as a part of the res gestæ. If, at the time he made other statements *Page 161 which would serve to explain, qualify, or interpret the remarks imputed to him, he would, under the law (Art. 728, C. C. P., 1925) have been privileged to have the jury hear the statements related. If the remarks imputed to him, in connection with his acts, were such as to show flight or to indicate to the jury that he was impelled by guilty conscience to avoid arrest, he was, under the law, entitled to give explanatory testimony refuting his intention to flee.
We find in the statement of facts that the appellant gave testimony bearing upon the subject last above mentioned. He testified in substance that he had been told that a man named Johnson had been employed by Fry, Sheriff of Denton County, to kill him; that he had been told by Johnson that he had decided not to kill him (appellant) and that Fry would bring a man named Parsons from Grayson County to kill him; that soon thereafter Parsons arrived in Denton County where he had not previously been a citizen; that he saw Fry point him out to Parsons. He also testified that he had been informed by an ex-sheriff of Denton County that Parsons was going to work for Fry and that he had killed several men, and that Fry had gotten him to kill the appellant; that he warned the appellant against being killed by Parsons at the instance of Fry; that practically the same facts were communicated to him by a man named Simmons and another by the name of Price. He was also told by a man named Shifflet that Johnson had been brought to Denton County to kill the appellant, and Parsons likewise. He said that after he had learned of the conspiracy to kill him, he was fearful that he would be killed by Parsons; that he had heard Parsons make a threat to kill him; that he armed himself with two pistols and a Winchester gun. He testified that after hearing these things and observing Fry point him out to Parsons, he believed that Fry and Parsons had formed a conspiracy to kill him. When asked why he did not report the conspiracy to the sheriff, he said:
"He was the man that hired this man to kill me. What good could I do to tell him?"
We understand from the record that the appellant, after the homicide, went to his home about a half mile from the place where the tragedy occurred and remained there until he surrendered to or was arrested by Schuyler Marshall, Jr., of Dallas County, which took place on the same day. Marshall testified that after his arrival in Denton County he was told by Fry, the sheriff, to "kill Martin and every G__d d___n one of them men;" that Fry further said that Martin had killed his deputy, Parsons, *Page 162 and for him (Marshall) to "kill Martin and every G__d d___n one in that house." As stated above, the appellant claimed to have committed the homicide in self-defense.
If we comprehend the record, the only two relevant facts which the appellant sought to elicit by the questions propounded, as set out in his bills of exceptions, namely his reason for failing to surrender to the Denton County sheriff, and the name of the person by whom his arrest was made, were put in evidence. It is not specifically stated that Marshall arrested the appellant, but it is made manifest from the testimony that he did so and that he did so at the appellant's home on the day of the homicide. This is not a controverted question. That the appellant believed that the sheriff was a party to a conspiracy to kill him was fully disclosed by his testimony. We will add that we are not impressed with the view that the evidence showed, or tended to show, an intent on the part of the appellant to evade arrest. His declarations at the time were to the contrary. He did make it plain that he was averse to falling into the hands of the sheriff of Denton County. His statement: "You tell the laws I am going home and for them to stay away; that I will surrender at the proper time," in connection with the fact that he did surrender to an officer of another county would seem to refute the theory of escape or flight. It is not thought that in making the analysis above indicated of the statement of facts, violence was done to the practice which has prevailed in this court to regard the statements in a bill of exceptions as true when they are in conflict with the statement of facts. See Briscoe v. State, 27 Tex.Crim. App. 193. This rule, however, is to be given a rational application. Touching it, this court, in the recent case of Plummer v. State, 86 Tex.Crim. Rep., used the following language:
"In a criminal case it is necessary to read the statement of facts to determine the sufficiency of the evidence before an affirmance can be ordered; and touching the practice of this court throughout its history to consider the legal questions presented in the light of the facts, we quote the remarks of a learned law writer: 'The Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all the evidence before applying the law to the case in hand.' (Wharton's Crim. Ev., Vol. 1, p. 491, note.)
"Concerning the rules of practice, it was said in substance by Chief Justice Phillips of the Supreme Court that they are not intended to encumber the courts with technical and arbitrary requirements, or to enjoin such rigid adherence to them as precludes *Page 163 their observance by reasonable and substantial compliance. (Railway v. Pemberton, 106 Tex. 466.)"
To appraise a bill of exceptions, whether it relates to excluded testimony, or to determine whether from other sources or from the same witness testimony which in substance is the same as that, the exclusion of which is complained of, are matters which this court has always held that it had a right to do, and which right, of necessity, it must have. To the mind of the writer, in order to invoke the rule the conflict must be a necessary one. As for example, in the case of Elkins v. State, 101 Tex.Crim. Rep., the bill of exceptions showed that certain testimony was given. The statement of facts upon the subject was silent. We think it was correctly held that the court was bound by the affirmative statement in the bill of exceptions and not by the negative fact that the testimony of which complaint was made, was not embraced in the statement of facts. So, in the case of Briscoe v. State, supra, the complaint was of a charge given to the jury. The bill of exceptions showed that the charge was based upon facts not in evidence. The statement of facts showed the contrary. There was a necessary conflict, and the court applying the rule was bound by the bill of exceptions. These, and Plummer's case, supra, are illustrations.
In the present case, two questions are propounded to the appellant. The objection made to them is not shown but was not sustained by the court. His ruling must be deemed correct in the absence of a showing to the contrary. Looking to the statement of facts, we find substantially the same evidence as that which the appellant sought to elicit by the means set out in the bill. If the appellant had given the testimony which is found in the statement of facts before the ruling complained of was made, the court would have been warranted in refusing to allow the repetition. If it came in after the ruling was made in the absence of a showing to the contrary, it must be assumed that the court changed his mind. The fact that the court may make an erroneous ruling in excluding testimony would not necessarily work a reversal if the same fact was afterwards or previously proved.
From what has been said it follows that in the opinion of the writer, the motion for rehearing should be granted, the reversal set aside and the judgment affirmed.
Affirmed. *Page 164
ON MOTION FOR REHEARING.