This is the second appeal. See 260 S.W. 584. The facts are sufficiently stated in the former opinion. The conviction is for murder, penalty ten years in the penitentiary.
We discuss the errors in the order in which same appear in appellant's brief. We are confused by the brief which refers to assignments of error instead of to bills of exception, and in our opinion will refer only to said bills of exception.
Bill No. 1 sets out that the witness Brinkley swore to a statement made by deceased a short time after being shot, to the effect that he came to see his mother and appellant shot him. This was held to be res gestæ in our former opinion, and became part of the law of the case. In his brief herein appellant insists that said statement was objectionable because violative of the rule rejecting testimony of undisclosed motive on the part of the person slain in being at the place where he was shot. If said objection had been made in the court below, so that the attention of the learned trial judge could have been drawn to same when he made his ruling, there might be a different proposition before us, but examining the bill we find that no such objection was then made. Trial courts rule on questions presented to them and we revise or uphold their rulings in the light in which the matter was presented.
On the former trial objections substantially the same as on this, were made to the testimony of Sheriff Craig, Dr. McElhannon, and Dr. Gunby. The complaints were considered and disposed of in our former opinion by holding the testimony res gestæ.
In addition to the above, complaint is now made of testimony given by witness Jacobs, who said that before the arrival of Sheriff Craig and the doctors, deceased said, "My God, why did you shoot me?" The bill sets out that the witness heard the shots and went down to the scene, and when he got there appellant *Page 644 was in his yard and deceased was in his lot on the ground. How close the parties were to each other is not set out, nor is it stated to whom the remark of deceased was addressed. No surroundings or antecedent facts appear. The bill presents no error. The statement was res gestæ.
Appellant's mother was in the house near where the shooting occurred. She testified on a habeas corpus hearing, and being dead at the time of this trial, her testimony as formerly given was reproduced on behalf of appellant. She detailed seeing deceased, Pearl Rudasill, approaching the house on horseback, said she heard appellant tell him three times to go back, saw deceased come on toward the house, and said that he threw his hand back this way (indicating by moving her hand down toward her side), at which time she said, "Oh, Pearl, don't shoot." Appellant desired to read from her habeas corpus testimony a question as follows: "How came you to say, 'Oh, Pearl, don't shoot?' " Also her answer, "Why, when he put his hand back there I supposed he was trying to pull his gun," but objection being made by the state, the question and answer were not admitted. We are of opinion the court was correct. The witness had detailed the facts causing her to make the statement to deceased not to shoot. The rejected matter was an opinion formed and expressed long after the making of the statement by the witness to deceased, and there appears no effort on the part of the state to cast any doubt on the fact of deceased having made such statement. Appellant was in no sense attempting to introduce some other related statement made at or about the time the statement already noticed which shed light on such statement. See Dunne v. State, 263 S.W. 612. We think all of Art. 728, 1925 Cow. C. P., must be looked to in construing the last clause thereof. When one party introduces the criminative acts or statements of another, such other has the right to fully explain same.
The matters set out in bill of exception No. 5 are open to a number of objections, but it is sufficient to say that the testimony called for was hearsay and appears immaterial to any issue in this case.
Bill of exception No. 6 wholly fails to inform this court as to the surrounding facts or circumstances which might make material or admissible the statement which was rejected.
Bill of exception No. 7, calling for the admission of the testimony of appellant's wife as to movements of the brothers of deceased some time before this homicide, which testimony was *Page 645 rejected, presents no error. Substantially the same rule is applicable to the testimony involving the same principle which appears in bill of exception No. 8.
Our State's Attorney objects to the consideration of the testimony set out in bill of exceptions No. 9 on the ground that same is in question and answer form. We think the contention is sound.
What was said by appellant to his attorney, and by the latter communicated to "the Rudasills" would appear hearsay and self-serving, and the court property sustained the objection thereto.
The expression of state's counsel in substance that life was cheap in Texas and that murders must be stopped, being objected to, the court gave a written charge to the jury not to consider same. We do not regard such remarks of that character as would lead us to conclude the error in the making of same could not be cured by the charge given.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.