1. This conviction was for murder. Manslaughter was in the case and a partial charge on the subject was given the jury at the request of the appellant. The whole law of manslaughter was not charged. The question of cooling time was in the case from two standpoints. A charge submitting this was refused. This should have been given. Perhaps, technically, critically, it might not be the subject of review, inasmuch as appellant does not make it definitely appear that he asked the charge before the argument was begun. As I understand the statute, however, if the defendant has not had a fair trial on his case and the charges, the strict critical technicalities are not to be applied. I do not believe that the harsh technicalities of the law should be applied at any time to deprive an accused of a fair legal trial. The statute should be liberally construed to the end that he may have a fair trial. C.C.P., arts. 25, 10, 4. The Constitution guarantees a fair trial by an impartial jury, and anything that tends to deprive him of this should be liberally construed in his *Page 628 favor to the end that his legal rights may be preserved. Guilt is the end to be ascertained. That means the real offense under the facts proved and appropriate charges applied to every phase of the facts and issues presented by facts.
2. The question that I particularly desire to notice, however, is found in bill No. 3. That bill recites: "J.H. Winn, sheriff of Atascosa County, a witness for the State, was, at the request of the jury, and after the said jury had retired to consider of their verdict, permitted, over the objection of the defendant, to testify in response to questions of the foreman of the jury, as to the distance where the hat was found from the Sanchez camp, if possible, the court failing to instruct the said witness to make his statement in the language used by him in his examination as nearly as he could, and in response to said question of said foreman, the said witness proceeded to give testimony not previously given by him, and thereupon said witness testified as follows: Question by the foreman of the jury: `We want to know the distance from where the hat was found to the Sanchez camp.' Answer: `It was about one hundred and fifty yards. That's it.' Question: `Did you step it off or measure it?' Answer: `I guess it fifty or about fifty or sixty yards. Guesses at it, and part of it I measured. Found it beyond a cord of wood, about fifty or sixty yards; fifty or sixty yards from the Galan-Sanchez camp, I mean.' To all of which said testimony the defendant then and there objected for the reason that it was inadmissible for the witness to do more than repeat the language as nearly as he could, the evidence previously given by him, and because his testimony was new matter, and because the court had failed to instruct the said witness to make his statement to the jury in the language used by him in his examination as nearly as he could, because the said witness had testified in the case and was only recalled at the request of the jury, and the court overruled the said objections of the defendant, and permitted the witness to give the above testimony, and the defendant then and there excepted to all of said testimony, and now here tenders this his bill of exceptions No. 3, and prays that the same may be signed and made a part of the record in this case, which is accordingly done, with the additional statement that witness stated the distance above mentioned to be 150 or 160 yards from where the hat was found to Sanchez's camp." This bill, it will be observed, presents clearly, succinctly and coherently that Winn, the sheriff, was recalled as a witness at the request of the jury after their retirement to consider of their verdict, and, over the defendant's objections, was permitted to testify in response to questions of the foreman of the jury as to the distance the hat was found from the Sanchez camp, and the court failed to instruct the witness to make his statement in the language used by him in his examination on the trial as nearly as he could and "in response to said questions of said foreman, the said witness proceeded to give testimony not previously given by him." And then follows his testimony. This shows, on its face, this whole proceeding was in violation of the statute. The witness could not legally testify *Page 629 to anything on recall by the jury, except what he had previously stated, and that to be in the language, as nearly as possible, delivered by him in the previous examination. The bill recites and sets out that the testimony was new matter, and makes it patent that the court did not instruct the witness as to such matters as the statute requires. The court nowhere as to this contradicts or qualifies this bill of exceptions. His qualification is that the witness stated the distance to be "150 or 160 yards from where the hat was found to the Sanchez camp." In his testimony set out in this bill, he said 150, and subsequently said it was beyond a cord of wood about fifty or sixty yards, and about fifty or sixty yards from the Galan-Sanchez camp. I do not understand how the bill of exceptions could be more plain on the question involved than this. We have two statutes with reference to the introduction of testimony outside of the regular trial examination. The first article referred to is article 718, C.C.P. of 1911. That statute is in the following language:
"The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is `necessary to a due administration of justice.'" This article has been held, and correctly, to be an exception to the general rule of hearing evidence, and fixes the limit of the discretionary powers of the court. Wherever it is deemed necessary to a due administration of justice the court may admit evidence at any time before the conclusion of the argument, but not afterwards. See Williams v. State, 35 Tex.Crim. Rep.; Southerland v. State, 52 Tex.Crim. Rep.; Lorance v. State, 37 Tex.Crim. Rep.; Lockett v. State, 55 S.W. Rep., 336; White's Ann. C.C.P., p. 490. Under this statute the court is prohibited from permitting the introduction of testimony after the close of the argument. Those who feel interested in the question may read with profit and entertainment the discussion of the question in Williams v. State, supra, as well as the other cases cited. This evidence was given before the jury after their retirement and the bill of exceptions recites positively it was new evidence, and the court does not controvert this. The only statement he makes is that the witness said it was about 150 or 160 yards from where the hat was found. The bill recites it was 150. His attention was called to the fact in the bill and at the time of the recall of the witness, that the witness had not been cautioned and was giving new testimony and the court does not gainsay, qualify or dispute this in the bill, but signs it. From the standpoint of the introduction of new testimony this was inadmissible and error by the express terms of the statute. There is another article, however, 755 in the 1911 Revised Criminal Procedure, which reads as follows:
"If the jury disagree as to the statement of any particular witness they may, upon applying to the court, have such witness again brought upon the stand; and he shall be directed by the judge to detail his testimony to the particular point of disagreement, and no other, and he shall be further instructed to make his statement in the language used in his examination as nearly as he can." This bill recites the *Page 630 jury had retired and came back and had the witness Winn recalled; he was not cautioned by the judge as to what he should testify, nor was the jury limited in their questions as to the testimony he had delivered on his original examination during the trial. This is all made patent on the face of the bill of exceptions. It is not controverted. It is further recited, emphatically, in the face of the bill of exceptions, not only that he gave additional and other testimony to what he testified originally, and the questions and answers are stated in the bill. Under this article the court should have instructed him to detail his testimony only to the particular point of disagreement and no other, and, further, that he should have been instructed to make such statement in the language used in his examination as nearly as he could. This bill of exceptions excludes the idea positively and certainly that the witness was so instructed. The court did not warn him or instruct him, and the court signs this bill of exceptions without qualifying or controverting those statements in the bill. This statute has often been construed, not only by this court, but by the Supreme Court, long before the creation or organization of the Court of Criminal Appeals.
In Campbell v. State, 42 Tex. 591, Judge Moore delivered the opinion and laid down these propositions: When a witness is permitted to be recalled at request of the jury, who disagree as to his testimony, such witness should be required to repeat his testimony upon the point in dispute, and in his words when previously testifying; it is error to allow a re-examination on that point. The provisions of the Code require: (1) The jury should indicate to the court the statement of the witness about which they disagree. (2) The witness should be brought upon the stand, and directed to detail his testimony in respect to this particular point and no other. (3) The court shall instruct the witness to make his statement in the very words used in his original examination as nearly as he can. When that opinion was delivered the Supreme Court was composed of Chief Justice Roberts and Associate Justices Reeves, Devine, Moore, and Gould. This was one of the great courts in the jurisprudence of Texas. Speaking of this, Judge Moore uses this language:
"Now let us note what occurred in the court below. The jury came into court and requested permission to re-examine the witness, but do not appear to have indicated any particular statement of the witness about which they disagreed. And although the court says: `He admonished the jury that the witness could only be interrogated in refererence to testimony which he had previously given, and about which some of them were not satisfied; and when the interrogations were propounded to, and answered by the witness, the court, as well as the witness, considered his answers as an effort to reiterate what he previously attempted to convey to the minds of the jurors.'" He further says: "The information given the jury did not serve the purpose, and can not be regarded as a substitute for the admonition to the witness. The jury were permitted to take upon themselves the office of examiners, and to make such inquiries as they desired, and that, too, of a *Page 631 most direct and leading character. The questions propounded to the witness had reference, no doubt, to matters about which he had testified, but certainly they were not of a character calculated to elicit a reiteration by the witness of his former statements, as nearly in the language in which it was made as he could give it." In the case quoted from it will be noticed that the trial court said that he admonished the jury that the witness could only be interrogated with reference to the testimony which he had previously given, and about which some of them were not satisfied, and that when these inquiries were propounded and answered, the court as well as the witness considered his acts an effort to reiterate what he had previously attempted to convey to the minds of the jurors; yet, with all that in the record before the Supreme Court they held it was not a sufficient compliance with the statute and reversed the judgment. It did not comply with the statute as was correctly held by the Supreme Court. If that was a failure to comply with the statute, what may be said of the failure in this case? The court made no attempt to instruct the witness, jurors, or anybody else, and he signed the bill stating positively that there was introduced new testimony. To the same effect is Tarver v. State, 43 Tex. 564. The headlines of that opinion is in this language: "When a witness is reexamined at the request of the jury, after their retirement and return into court, the omission of the judge to direct the witness to confine his testimony to the particular point of disagreement, and to make his statement in the language used by him in his first examination as nearly as he can, will, when the witness, in the absence of such caution, has given additional evidence, be ground for reversing a judgment of conviction." In that case, as in this, the witness was not cautioned or directed by the judge to detail his testimony in respect to the particular point of disagreement and no other. It was said in that opinion, which was delivered by Mr. Justice Reeves:
"It not being shown that this was done, we are not authorized to say that such a departure from the requirements of law in the mode of examination and in permitting the witness to make a further and additional statement from that made on the trial may not have been prejudicial to the rights of the appellant. It might have been presumed that the proper instructions had been given to the witness, if the judge had not stated what occurred at the time, but having undertaken to state the facts, no such presumption can arise. If, however, it appeared that the instructions were given, it would not remove the objection to the statement made by the witness on his re-examination. It is not necessary to examine the other grounds of objection to the judgment with a view to express an opinion, as they may be avoided on another trial." So the Tarver case was reversed exclusively on the proposition involved here.
It was held in Shipp v. State, 11 Texas Crim. App., 46, counsel for defendant can not waive appellant's right to be present on such occasions; and it was held in Edmondson v. State, 7 Texas Crim. App., 116, following Tarver v. State, and Williams v. State, supra, that where a *Page 632 witness has been recalled, it is error to permit him to make statements additional to his previous testimony; and in Lorance v. State, 37 Tex.Crim. Rep., it was held error tointerrogate a witness with reference to any other fact. These cases were reversed upon this question. These cases have been followed, so far as I can discover from an examination of the authorities, by all decisions in Texas where the matter has come for investigation. See Wilson v. State, 37 Tex.Crim. Rep.; Lorance v. State, 37 Tex.Crim. Rep.; Lockett v. State, 55 S.W. Rep., 336; Southerland v. State, 52 Tex.Crim. Rep.; Williams v. State, 35 Tex.Crim. Rep.; Branch's Crim. Law, sec. 878. This bill of exception can not be treated in the light of the ordinary bill reserved to the introduction of testimony during trial. All legitimate testimony is admissible during the trial and under certain circumstances it may be introduced in the discretion of the court for the due administration of justice before the argument is concluded, but when the argument has been concluded the case is closed absolutely so far as the introduction of testimony is concerned. There is no way in our Code and practice to get witnesses before the jury afterwards, except where the jury disagree after their retirement as to what one or more witnesses stated. The witness can be recalled at the request of the jury, and under proper instructions may restate his previous testimony in accordance with the terms of the statute, but he can not give new testimony. Wherever this question has come, and that statute has been violated, a reversal has always been granted and well this should be the case. The Legislature saw proper to close the case, so far as the introduction of testimony is concerned, at the conclusion of the argument. The case is then made one way or the other, and so far as the facts are concerned as to the introduction of testimony, concluded. This is a valuable right; it is a provision of legislative authority in the due order of the administration of justice; they had the right, the authority and the power to prescribe the rules, and this court and no court in Texas can or ought to say that it shall not be carried out as enacted by the legislative authority. The question of injury does not enter into the discussion. Where the bill states the facts and the statute has been violated, the question is settled and the reversal inevitably follows if the law is pursued. A bill of exceptions reserved to this character of proceeding is not to be construed as a bill ordinarily reserved to the introduction of testimony during the trial.
3. There was another thing done that seems to me was entirely wrong. While the jury had Winn on the stand, — at least while they were in the courtroom, the district attorney suggested and offered to permit the jury to carry with them in their retirement a map or plat drawn by the witness Sanchez, causing appellant to object. Lorance v. State, supra. The bill recites this map was incorrect, admitted by Sanchez to be incorrect, and was not introduced in evidence, but it forced appellant to object to this sort of an illegal performance when they came in from their retirement to seek the testimony of the witness Winn about another matter. This presents the matter in a very different *Page 633 light from what it would have been had it occurred during the main trial of the case. Under the statute the district attorney had no authority to introduce the map, the jury had not called for it, and such performance as this should not be tolerated. Lorance v. State, supra. Its introduction would have been clearly violative of the statute, article 755, above quoted. It occurs to me that this question is of sufficient importance to require this judgment to be reversed. It was not right to force the appellant to object at that juncture to the admission of illegal testimony. From my view of the record and the law, I can not accord my sanction to the affirmance of this judgment.
This judgment should be reversed and the cause remanded.