Appellant was convicted for the murder of Leon Means, punishment being assessed at fifty years in the penitentiary.
The indictment contained two counts; the first alleging that appellant "did voluntarily with malice aforethought" kill deceased by shooting him with a gun; the second alleging that appellant "did voluntarily" kill deceased, etc. By motion in arrest of judgment the indictment was attacked as not properly charging murder under the new murder statute. (40th Leg. Ch. 274, amended by Special Session same Leg. Chapter 18.) The opinion expressed in Crutchfield v. State, (No. 11418, opinion on rehearing October 31st, 1928) is against appellant's contention.
Deceased and appellant worked together in a garage at Leming. So far as the record shows they were on friendly terms. Deceased slept in the garage. Between daylight and sun-up on August 26th, 1927, a deputy sheriff who lived near heard a shot from the direction of the garage. He dressed and hurried over there. Appellant was seen some forty yards from the garage walking at an ordinary gait going in the general direction away from the garage and towards his home. Means was found on his cot. He had been shot through the arm, the same bullet apparently causing a wound in the neck. About an hour later the sheriff went to appellant's house to *Page 316 arrest him. Appellant shot himself. The record is silent as to any suggestion of motive prompting appellant to kill Means.
When the deputy sheriff arrived at the garage — which was eight or ten minutes after he had heard the shot — upon discovering Means to be wounded, he asked who shot him, to which Means replied, "Powell, I reckon"; the officer then asked if he said anything, to which Means replied, "Yes, he said something, but I was asleep and didn't understand him." The reception in evidence of Means' statement was objected to because no predicate was laid for its admission as a dying declaration, and for the further reason that it was a conclusion of the injured party. The statement appears to have been admitted as res gestae. That it was res gestae in point of time seems certain, but that does not render admissible everything that might be said under such circumstances. In Corpus Juris, Vol. 22, Sec. 558, the rule is thus stated: "Expressions of opinion are not ordinarily admissible as part of the res gestae." This rule has been given effect in our own state in civil cases as evidenced by the citation of authorities under the quoted text, and it applies with equal force in criminal cases. In applying the rule frequent difficulty has arisen in determining whether the statement objected to was a mere conclusion or a shorthand rendition of the facts though bearing the appearance of a conclusion. See Williams v. State, 40 Tex.Crim. R., 51 S.W. 220; Williams v. State, 40 Tex.Crim. R., 51 S.W. 224; Warren v. State,9 Tex. Crim. 629; Lockhart v. State, 53 Tex.Crim. R.;111 S.W. 1024; Clark v. State, 56 Tex.Crim. R., 120 S.W. 179; Craft v. State, 57 Tex.Crim. R., 122 S.W. 547; Couch v. State,93 Tex. Crim. 27, 245 S.W. 693. After reviewing many authorities it was said in Couch's case:
"Neither the deceased nor accused, when laboring under such pain or excitement as will admit their statements as res gestae, make choice of words which otherwise might be selected with more care. The question always is: Can they with reasonable certainty be said to express facts although bearing the semblance of opinion?"
Applying that test to the statement proven over objection in the present case much difficulty is encountered in giving it construction other than as the conclusion of the wounded man. The effect of the statement appears to be that the wounded man was asleep; that something was said which was not understood by him; that he was shot and he "reckoned" Powell did it; in other words he "thought" or "supposed" or "concluded" Powell did it. (Webster's Int. Dictionary.) To turn the statement back into the order in which it *Page 317 was developed and fairly construed we have: (Q.) "Who shot you?" (Ans.) "Powell, I reckon." (Q.) "Did he — the man you reckon was Powell — say anything?" (Ans.) "Yes, he said something but I was asleep and did not understand it."
We have been unable to reach any other conclusion than that the statement complained of should have been excluded as a mere conclusion of the deceased. Its harmful character is patent.
The judgment must be reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.