Appellant insists that we should have considered his bill of exceptions No. 14. A re-examination of the question, in view of the authorities to which we have been referred in argument on the motion, has convinced us that we were in error regarding this matter. The bill recites that an effort had been made by the State to show that the improper relation between deceased and appellant's wife was the result of her advancements rather than deceased's; that two weeks before the homicide the wife was in the hospital sick, and that appellant found deceased visiting her there and a fist fight resulted; that appellant told deceased to leave the wife alone; that two or three nights before the killing and after deceased had been warned to stay away from the wife, appellant saw deceased in company with appellant's wife on the streets of Fort Worth; that appellant had testified that on the night prior to the killing his wife told him she had been having intercourse with deceased, who had persuaded her into such relations, and told him to be careful as deceased was carrying a gun; that appellant had testified that immediately prior to the homicide he saw deceased with his hand in his side pocket looking right into appellant's eyes, and that he believed deceased intended to harm him from the information his wife had given him. Before Mrs. Moore was tendered as a witness, appellant had testified that his wife had told him that deceased had said he would not give her up, that she could not leave him, and if she did he would shoot appellant; that his wife warned him to be particular with deceased, that he was carrying a gun; that she had seen him with it, and that he claimed to be out of the army and could handle a gun well. All of these matters were in evidence before Mrs. Moore was tendered, and the substance of it is recited in the bill advising this court of the status of the case when the witness was offered. The witness testified that a short time before the killing she had a conversation with deceased in which he made certain statements relative to Mrs. Reynolds. She was then asked, "What did you tell him (deceased) and what did he say to *Page 199 you?" The State interposed objection without stating any grounds therefor, which was sustained and Mrs. Moore's further evidence excluded. The bill recites that she would have testified that deceased had admitted improper relations with Mrs. Reynolds, said he loved her, and was going to get a divorce for her, take her away from appellant and marry her, and that he would continue his relations with her until he could get appellant out of the way, and would either kill appellant or be killed before he would give her up. The bill is approved without qualification or explanation. If the court was not apprised of what the proposed testimony was, he does not so certify. It is true this bill contains certain statements made by Mrs. Moore to deceased which were probably not admissible unless necessary to make clear deceased's statements in response thereto, but the State's objection being general only, not specifying the portion which might be excluded upon specific objection, does not support the court's ruling in excluding it all. Hughes v. State, 152 S.W. Rep. 912; Pinkerton v. State, 160 S.W. Rep. 87. (Other authorities are collated under Sec. 211, Branch's Ann. P. C.). The statements made by deceased to Mrs. Moore, and the threats contained therein, were not communicated to appellant, hence in no way operated on his mind at the time of the killing, nor added significance to the incident that deceased was claimed by appellant to have had his hand in his pocket at the time. The wife was not used as a witness. Appellant's testimony alone put self-defense in the case based upon threats communicated by his wife and deceased's acts at the time of the homicide. As to deceased's acts, there was direct conflict between appellant's evidence and the officer who was an eyewitness to the killing. The only threat from deceased of which the jury knew came through the wife, a source always subject to more or less doubt in cases like the present, and reached the jury through appellant's testimony alone, a medium subject to suspicion. If the statement and threat by deceased to Mrs. Moore, — couched in language very similar to that conveyed to appellant by his wife as having been made to her by deceased, — had been permitted to go to the jury, it would have corroborated the communicated threats and added to the probability of an acceptance by them of the truth of a similar threat to the wife upon which appellant claimed to act, and which bore directly upon the issue of self-defense. Bereal v. State, 88 Tex.Crim. Rep., 225 S.W. Rep. 252; Powers v. State, 88 Tex.Crim. Rep., 227 S.W. Rep. 671; Corpus Juris, Vol. 30, p. 241; Levy v. State, 28 Texas Crim. App. 203.
The motion for rehearing is granted, the judgment of affirmance set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded. *Page 200
CONCURRING OPINION.