dissenting.
This is an unexplained killing; there is an entire absence of any suggestion of motive or that the killing was perpetrated with express malice. The deceased and the appellant were good friends.
According to the state’s testimony there were no eye witnesses ; no one saw the appellant shoot the deceased. If appellant killed him it was during a drunken orgy. The state relied solely upon circumstantial evidence for a conviction. The jury was so instructed.
The state offered in evidence appellant’s written confession, in which, among other things, appellant stated:
“I was so drunk I don’t know what happened but I remember some shooting and I left.”
There is not an inculpatory statement in the confession. Appellant’s statement that he did not know “what happened” tends to exculpate him of rather than connect him with the killing.
The appellant did not testify. He offered his wife as a witness and she testified that it was she, and not her husband, who killed the deceased and that she did so in defense of her husband and herself from the joint attack of the deceased and his wife. I quote from the testimony of appellant’s wife, as follows:
“(Q. Now, Mrs. Hague, state whether or not right at that very same time if the deceased, Mr. Allbrite, and his wife, Wanda Allbrite, didn’t have your husband on the floor beating on him?) A. Yes, sir, they had him in the floor, and was [sic] beating and kicking on him.
“(Q. They were kicking him?) A. Yes.
*397“(Q. What did you do then?) A. Well, they were kicking, and the gun was laying about that far. (indicating)
“(Q. What did you do next?) A. When they was kicking?
“(Q. Did you see the gun?) A. Yes, it was laying on the floor, and Charles Allbrite was trying to reach the gun, and said, T will kill you, you son of a bitch.’
“(Q. Said what?) A. T will kill you, you son of a bitch.’
“(Q. Who was he talking to?) A. My husband.
“(Q. Mr. Hague here?) A. Yes.
“(Q. What did you do then?) A. I picked the gun up. He was trying to reach it, and I picked it up.
“(Q. What did Allbrite do then?) A. He started toward me and hit at me.
“(Q. He started what?) A. He started, turned around at me, and I backed off when I picked the gun up. He stepped back and hit at me.
“(Q. He swung at you?) A. Yes, he swung at me.
“(Q. All, right, then what did he do next, Mr. Allbrite do next?) A. Well, after he hit at me?
“(Q. Yes.) A. I stepped back a little bit farther, and he kept coming at me.
“(Q. All, right, what did you do then?) A. I shot him.
“(Q. You shot him?) A. I sure did.
“(Q. How many times did you shoot him? A. I shot him twice.
“(Q. Were you afraid of him that time?) A. Sure, when he was hitting at me and cussing and trying to kill my husband. That is all I knew to do, was shoot. (Emphasis, supplied.)
*398.. “(Q. Was he moving toward you?) A. Yes, sir, he was coming toward me when I shot him.
“(Q. At that time you shot him, where was your husband?) A. He was laying in the floor.”
This testimony is not contradicted by any witness.
The state’s testimony placed appellant’s wife at the shooting and in the room where it took place.
There was testimony corroborating the wife of the appellant as to the bloody condition of her husband after the shooting.
It is the long1 established rule that the declarations of a third party admitting his or her guilt of the crime for which the accused is on trial are admissible where the state is relying solely upon circumstantial evidence and the guilt of such party is inconsistent with the guilt of the accused and all the facts show that such third party was in position to have committed the crime. Branch’s P.C., 2nd Edition, Yol. 1, p. 153, and authorities there cited.
The testimony of appellant’s wife comes directly within the rule stated. The admissibility of her testimony was not challenged by the state.
It is also the rule that where there is testimony showing that some party other than the defendant committed the offense, the defendant not aiding, the court should charge the jury affirmatively that if such other person committed the offense, or if there was a reasonable doubt that he did, then the defendant must be acquitted. Branch’s 2d Edition, Vol. 1, p. 152.
The trial court gave no such instruction, here. The appellant did not request that it be given, nor was an exception reserved to the charge for failing to include such instruction to the jury.
It is also a rule of long standing that a conviction based upon circumstantial evidence will not be sustained if the circumstances proved do not exclude every reasonable hypothesis except the guilt of the accused, and a conviction will not be sustained if the evidence shows as strong a case against another as it does against the defendant and there is no proof that they acted together. Branch’s P.C., 2d Edition, Vol. 4, p. 363.
*399These rules of law are directly applicable and controlling here.
The state’s testimony is wholly circumstantial and shows, itself, that others, including the wife of the appellant, were in position to have killed the deceased.
The testimony of appellant’s wife showed that she killed the deceased in her own self-defense as well as in the defense of her husband.
No witness testified to facts contradictory of the testimony of appellant’s wife, although the evidence showed that there were others not called as witnesses who could have contradicted her testimony, had it not been true.
Under all the facts as well as the law, appellant was entitled to have the jury affirmatively instructed to the effect that if his wife, acting alone, killed the deceased, or if they had a reasonable doubt thereof, they would acquit him. Branch’s P.C., 2d Edition, Vol. 1, page 152.
Just why the trial court failed to so instruct the jury the record does not reflect.
It occurs to me that the duty imposed upon trial courts to give to the jury “* * * * a written charge, distinctly setting forth the law applicable to the case * * (Art. 658, Vernon’s C.C.P.) would have required such a charge to be given.
It must be remembered that the burden cast upon the accused to except to the charge and request an instruction to the jury does not relieve the trial court of the duty to charge the law applicable to the case.
The statutory requirement for filing exceptions and objections to the charge is in the nature of an estoppel and prevents an erroneous charge from constituting reversible error when the error is not called to the trial court’s attention before the charge is read to the jury.
The charge in this case is patently erroneous in failing to apply to the law the facts showing1 the guilt of another.
The failure of the trial court to so instruct the jury does not appear, however, to have injured the appellant; to the contrary, *400it may have inured to his benefit. This could account for appellant’s failure to request that the issue of guilt of another be submitted and for his failure to object when it was not done.
When the trial court did not instruct upon that issue, then the jury were not called upon nor did they have an opportunity to pass upon that issue.
The jury’s verdict, then, was not a finding that the wife of the appellant did not kill the deceased, as she testified she did.
As the jury was not permitted to pass upon that issue, the rule stated and relied upon in the majority opinion to the effect that the jury was not bound to accept the testimony of the wife of the accused is not applicable here.
The cases cited as supporting that conclusion of my brethren go no further than to hold that a jury is not required to accept the testimony of an interested witness. Obviously, that rule has no application where the jury is not called upon to determine whether the testimony of the interested witness is to be accepted or rejected.
But whether the testimony of appellant’s wife was or was not to be held conclusive is immaterial, for her testimony was sufficient to present an outstanding hypothesis of the guilt of another.
Under the law applicable here, when that testimony, with all the necessary attendant circumstances, showed the guilt of another, the burden was cast upon the state to disprove that fact. The state made no attempt to discharge that burden.
Appellant appears well within his right to rely for a reversal of this conviction upon the insufficiency of the state’s testimony to authorize the conviction.
It has been the long-continued and unbroken holding of this court that a conviction based upon circumstantial evidence will not be sustained if the circumstances proved do not exclude every other reasonable hypothesis except defendant’s guilt. In that connection, it has also been said that an outstanding hypothesis of guilt of another exists — as has hereinbefore been pointed out —where the evidence shows as strong a case against another as it does against the defendant. Branch’s P.C., 2d Edition, Yol. 4 (supra).
*401Such are rules of law which are binding upon this court and which this court ought to apply, without fear, favor, or equivocation, when shown to be applicable.
The facts bring this case clearly within the rules stated. If those rules of law are to be enforced and are to remain inviolate, this case must be reversed. If this appellant is to be condemned to penal servitude in open disregard of established rules of law, an affirmance of this conviction is proper, because that is the exact condition under which he was convicted.
When the law speaks, it must be obeyed if we are to remain a free people; if the law is not to be obeyed, then we are no longer governed by law and we no longer exist as a free people.
The law says that this appellant has not been shown to be guilty of the offense charged. Such being true, I cannot agree to the affirmance of this conviction.
I respectfully dissent.