N. A. Hobbs v. State

Willson, Judge.

1» It was not error to reject the testimony offered by the defendant to prove that the officer, Durham, a short time before the shooting, had told Whiteley to take Montgomery away from the saloon, and to his home, because he was intoxicated. This was hearsay and irrelevant. It was permissible for the defendant to prove that Montgomery and. Whiteley, or either of them, was intoxicated on ¿the occasion, and he was allowed to introduce such testimony.

2. We think the court erred in rejecting testimony offered by the defendant to show that, prior to the shooting, there had been a great deal of car breaking and stealing from the cars at the depot, where the defendant was on guard. This evidence would have been competent and pertinent to throw light upon the motive or intent which actuated the defendant on the occasion of the shooting. It constituted á part of the circumstances of the case, and tended to elucidate the conduct of the defendant—if not to justify,, perhaps to mitigate it. (Whart. Crim. Ev., secs. 23, 24)

3, The defendant proposed to prove the explanation made by himself of the shooting a few minutes after it occurred. We are not informed by the bill of exceptions taken to the, rejection of this proposed testimony, what his explanation was, and hence we cannot judge of its materiality, and cannot say that the court erred in rejecting it. Such explanation may have been in accord with the testimony of the State’s witnesses, and, if so, certainly its rejection did not injure the defendant, and would not be error, if error at all, of which he could complain. (Davis v. The State, 14 Texas Ct. App., 645.) If, in fact, the declarations made by the defendant were material, then their admissibility would depend upon whether or not they were part of the res gestee. “Declarations made by a defendant in his own favor, unless part of the res gestee, or of a confession offered by ■ the prosecution, are not admissible for the defense. * * * It is otherwise when such declarations are part of the res gestee. It is not, however, necessary that such declarations, to be part of the res gestee, should be precisely concurrent with the act under trial. It is enough if they spring from it, and are made under circumstances which preclude the idea of design. The test is, were the declarations the facts talking through the party, or the party’s talk about the facts. Tnstimtiveness is the requisite, and when this obtains, the declarations are admissible. (Whart. Crim. Ev., secs. 690, 691.)

“If the declarations appear to spring out of the transaction, if they elucidate it, if they are voluntary and spontaneous, and if they are made at a time so near to it as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous.” (Booth v. The State, 4 Texas Ct. App., 202; Talliaferro v. The State, 40 Texas, 523; Brunet v. The State, 12 Texas Ct. App., 521.) If, under the above stated rules defendant’s explanation of the shooting constituted a part of the res gestee of the same, he is entitled to have them before the jury as evidence. The question of the admissibility of such declarations is for the trial judge to determine, and the weight to which the same is entitled is a matter for the jury to decide.

4. In instructing the jury upon the law of the case, the learned judge did not submit the issue of aggravated assault and battery, and refused special instructions requested by the defendant embodying the law of manslaughter and aggravated assault and battery. Exceptions were taken by the defendant to the charge of the court because of said omission, and to the - action of the court refusing special instructions asked. It was the opinion of the learned’trial judge that the evidence did not raise the issue of aggravated assault and battery; that, if the parties shot had died from their wounds the homicide wound have been murder, or justifiable, and could not have been manslaughter. We must differ with him in this view of the case. By the ■ testimony of the witness Hill, who was present and saw and heard what transpired on the occasion, it was proved, substantially, that the defendant threw his light on Montgomery and ■ Whiteley and said to them: “I am the guard here, and it is my business to know who you are and what you are doing.” Montgomery answered: “ D—n you, I’ll show you who we are”; at, the same time he, Montgomery, made a quick movement and his. right hand passed to his right hip pocket. As this was done, a shot was fired, and in an instant another shot was fired, and the parties then scattered and separated a few yards, and then the third shot was fired and Whiteley fell. Montgomery did not. fall. Witness was on duty with the defendant, guarding the. railroad yard from traspassers. This occurred about eleven o’clock at night, and the night was dark, and it occurred on the said railroad yard. It appears from other evidence in the case that one shot took effect in Montgomery’s arm, one took effect in Whiteley’s arm, and another in Whiteley’s leg, and from the effects of this last shot Whiteley fell. When the shooting began the parties were close together. The first shot fired wounded Montgomery. Whiteley when shot was beyond Montgomery from the defendant, that is, Montgomery was between Whiteley and the defendant. When the defendant fired the last shot, which struck Whiteley in the leg, he, Whiteley, was walking off from the defendant.

This evidence presents the issue of self-defense in the shooting of Montgomery, and also the accidental shooting of Whiteley. Upon these issues the court very properly, and we think correctly, instructed the jury. But while these issues are presented, is there not another phase of the case which this testimony tends to establish? Suppose the evidence was not sufficient in the esti: mafcion of the jury to show self-defense, but was sufficient to show violent demonstrations on the part of Montgomery, sufficient under the circumstances to excite in the mind of defendant sudden passion, rendering him incapable of cool reflection, and sufficient to excite such sudden passion in a person of ordinary temper, and that, acting under this sudden passion, arising from adequate cause, he did the shooting, then, while the defendant’s act would not be justifiable, still it would not be an assault with intent to murder, but would be an aggravated assault and battery.

Again, the learned judge instructed the jury that the defendant’s right of self-defense ceased when the danger, real or apparent, had ceased. This was correct. But suppose, in defending himself against a violent attack, or a supposed violent attack, he became excited by passion to such an extent as to render his mind incapable of cool reflection, and under this state of excitement he carried his right of self defense too far, used more force than was necessary to his protection, fired one or more shots after all real or apparent danger had ceased, but before his mind had had time to cool, and from wounds thus inflicted death had resulted, would this have been murder? We think not. Suppose the first shot fired by the defendant was justifiable, but that the two shots fired by him which struck Whiteley were fired after the danger, real or apparent, which threatened the defendant had ceased, but that he fired the said shots under the immediate influence of sudden passion, arising from the supposed deadly conflict in which an instant before he had been engaged, and fired them before he had had reasonable “cooling time,” reasonable time to realize that he was no longer in any danger, would not this state of facts, if the shots had killed Whiteley, constitute manslaughter and not murder? We think a homicide under these circumstances would not be of a higher grade than manslaughter.

In our opinion the evidence fairly raises the issue of aggravated assault and battery. The evidence tending to support this phase of the case may be very slight, and perhaps not sufficient in the mind of this court or of the trial court to require serious consideration, yet this does not relieve the court from submitting the issue to the jury. It is for the jury to pass upon such issue, and determine whether or not the evidence sustains it. We think the evidence demanded a charge such as was requested by the defendant, and that the court erred in not giving such a charge.

Because of the errors we have pointed out, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered June 25, 1884.