Appellant was convicted of murder, his punishment being assessed at ninety-nine years confinement in the penitentiary. *Page 556
It is unnecessary, we think, to give anything like a statement of the facts. The State relied largely upon the testimony of Williams to the effect that when he walked to where the parties were engaged in the difficulty he heard them talking. His testimony and that of defendant is at variance as to who began the conversation that finally led to the trouble. The great preponderance of the testimony shows that the parties were friendly up to the time of the killing, and that appellant was a renter of the deceased. One of the witnesses testified to the effect that appellant expressed some dissatisfaction because deceased did not accompany him to the town of St. Jo on Saturday to assist him in raising some money previous to the homicide on Monday. Deceased was building a fence separating the pasture from the farm land. Appellant and other hands had been assisting him. It is in evidence that deceased, the landlord, was to pasture the stock of his tenants free, among others the stock of appellant. Appellant was asked if he would further assist in building the fence on Monday, to which he assented, and went to the place of the homicide for that purpose, taking a single barrel shotgun. He accounts for taking the shotgun by stating that he would find squirrels and rabbits in passing through some timbered land and would use the gun for the purpose of killing these. When he reached the place of the homicide he laid it down a few steps from the fence in some young corn in which was also growing some Johnson grass. This was about eight to twelve steps from the fence on the south side. Deceased drove up in his wagon on the north side of the fence. A conversation occurred in which deceased informed appellant that he would have to pay fifty cents a month pasturage on his stock or keep them out of the pasture. Appellant reminded him of the fact that the contract was that he was to have pasturage free. A wordy altercation became a little incisive. Deceased jumped out of his wagon with a double-edged ax. Appellant says he got the ax out of the wagon, while Williams says he picked it up from the ground. He drew the ax in a striking attitude, and appellant stepped back and got his gun and approached within a few steps of deceased. Williams says at this time deceased had his ax handle in his hand with the ax part of it down by his leg or side, while appellant says he had it drawn back over his shoulder in a striking attitude. He fired the gun from down by his side without raising it to his shoulder, the load of shot taking effect in appellant's abdomen about two or two and one-half inches to the right of the middle line of the stomach, which resulted fatally. The ax was found about two or three feet from deceased's body, some of the testimony showing it was near his feet. Appellant and Williams both left. Appellant surrendered to the officers, and Williams went around and secured some nearby neighbors and returned to the scene of the tragedy. It seems that the son of deceased had been to the body before these parties arrived. Two other young men were also present. The wound was described as having entered, as before stated, going straight in and about an inch to an inch and a *Page 557 half in diameter. The gun was loaded with No. 6 shot. This would indicate that the muzzle of the gun was not very far distant from deceased when it was fired. There was no controversy or question as to the wound and that it entered from the front and at the point designated. This did not become an issue and there was no other evidence as to the place of the wound. Appellant made no contention that the wound entered otherwise than in the front, and his contention was further that deceased was facing him at the time with an ax drawn back above and over his shoulder. The testimony describing the wounds is stated because of a bill of exceptions reserved to the action of the court permitting the exhibition of the bloody shirt and pants to the jury while the widow of the deceased was on the witness stand. The bill shows that she was very much affected when the clothes were shown her and while describing them was crying. Exception was reserved to this, and, we think, correctly. Where the production of the bloody clothes tends to solve any disputed fact or explain issues about which there was doubt, they should go to the jury, otherwise they should be excluded. Under these decisions we are of opinion that the court was in error with reference to this testimony, and it comes within the rule laid down in Cole v. State, 45 Tex.Crim. Rep., followed in Christian v. State, 46 Tex.Crim. Rep.; Crenshaw v. State, 48 Tex. Crim. 77; Lucas v. State, 50 Tex.Crim. Rep.. These are a sufficient number of cases to show the rule as applicable to this bill of exceptions and the action of the court.
There are two other bills practically to the same effect reserved to the introduction of the testimony of the two witnesses who went to the scene of the homicide with Williams. They cover each about a couple of pages of the transcript, setting out conversations and acts occurring between the parties at the scene of the tragedy some time after the shooting but during the same day. These matters were things that were said by Williams and the conversation between himself and these witnesses as to what occurred at the time of the homicide, the location of the parties and various things that he says he saw at the time, to all of which exceptions were reserved for various and sundry reasons. We are of opinion this testimony was not admissible. These were acts, conversations and declarations made in the absence of the defendant among third parties, and in no way binding upon appellant. It is useless, we think, to go into a discussion of this matter. There are quite a number of cases we might cite, among others, Gonzales v. State, 16 Texas Crim. App., 152; Felder v. State, 23 Texas Crim. App., 477; Liner v. State, 70 Tex.Crim. Rep.; Streight v. State, 62 Tex. Crim. 453; Holt v. State, 58 Tex.Crim. Rep., 125 S.W. Rep., 45. The rule is so well recognized it is unnecessary to cite authorities. This illegal testimony may have had and doubtless did have material effect upon the minds of the jury in their finding the amount of punishment.
The court charged upon the issue of manslaughter. There was a *Page 558 sudden quarrel, starting about not very important matters. The parties became angered and minds inflamed. The deceased made the first demonstration with the ax. The testimony in any event was illegal and improper. The assessment of ninety-nine years in the penitentiary may have been induced by this testimony by giving it undue prominence and weight.
The judgment is reversed and the cause remanded.
Reversed and remanded.
PRENDERGAST, JUDGE, dissenting.
ON REHEARING. June 27, 1917.