On the 31st day of August, 1885, in the city of Sherman, and in the Bank Saloon, Harrison shot and killed Jack Goodwin. For this homicide he was indicted and convicted of murder of the first degree, his punishment being assessed at confinement in the penitentiary for life.
Mrs. Harrison, the wife of defendant, testified as follows:
“I remember the occurrence of the killing of Goodwin. I was at that time at my father’s house (locating it). On the day of the killing my husband, the defendant, came home between half-past 11 and a quarter to 12 o’clock. When he camel was in the back room of my father’s house, down stairs. I told him how the deceased, Jack Goodwin, had treated me. I told him what the deceased had said and done to me on the last day of the old settlers’ picnic, which was Friday, I think, on the 21st day of August, 1885. Deceased came down between 6 and 7 o’clock in the evening. I was standing in the passage between the two houses. Goodwin then said to me: ‘Johnnie is riding to-day.’ I said ‘ yes.’ He then asked me where FTettie was. FTettie is his wife. I told him she was gone to supper. He stepped up to me and took me by the band and said: ‘ Come in here and let’s have some fun,’ and started towards the door of a little room on the south side of the passage, the door of which opens into the passage. I broke away from him and ran to the gate. I told him never to speak or look at me again, and that if he ever spoke to me that way again I would tell my husband. At the time this occurred I did not tell my husband of it. On the Tuesday before the killing Jack. Goodwin came home about dusk in the evening, and met me again in the passage way while I was going to my room. I leaned back against the wall to give him room to pass, and he came up to me with both hands and lifted me through the door into the little room and pulled the door to, I think with his foot. I then pushed the door open with my foot, and he let loose of me with one hand to shut the door again, when I broke loose from him and ran out through the back door. When he had hold of me and had lifted me into the little room, he said somethin» that sounded like ‘I have got you now.’ When mjr husband came home on the day of the killing, about a quarter to 12 o’clock, I told him this. He had our child on his lap when I was telling it to him. He put the child down on the floor, and got up and stood by the *397door, and turned pale like he was going to have a chill, and placed his hand on his head and said, ‘ Oh, my God! ’ I said, 6 Don’t go up town,’ and he said, ‘I will go up stairs.’ He went up stairs. I was about to tell this to my husband once, I think, the evening before the killing, but some one, think my sister, came in and I did not tell him. The first I knew of the killing was hearing some negroes in the kitchen of the Harrington House talking about some shooting up town. I said to whoever it was in the room, I think my mother, ‘I will go up stairs and ask Mr. Harrison what the shooting was about,’ thinking that it was some shooting which had occurred before he came home. I did not know that he had gone out until my sister told me he was not up stairs, and that he had gone.”
The homicide was upon the first meeting of defendant and deceased after this conversation is said to have occurred. A few minutes after the shooting, the defendant told J. W. Levjr that he had done it (the shooting) to save his own life. Ed. Levy states that he heard J. W. Levy’s question to defendant, and that defendant answered: “I had to do it to save myself, or to protect myself.”
Defendant offered to prove by C. K. Wandelohr that, within from three to four minutes after the shooting, the time it would take witness to walk one hundred yards at an ordinary gait, he asked defendant what made him do it, and he replied: “I done it to protect my wife and child.” That the defendant did not seeni excited at first, but, when he made the answer “ that it was to protect his wife and child, his, the defendant’s, eyes filled with tears,” etc. To this proposed evidence the county attorney objected, upon the ground that the proposed evidence was the declarations of defendant, hearsay, not res gestae, and hence not admissible. The court sustained the objection and defendant excepted and saved his bill.
The learned judge appends the following reasons for sustaining the objections of tbe State and rejecting the evidence: “1st. The defendant was under arrest and in custody for the same offense of which he stands indicted, at the time the statement was made.
“ 2d. Because tbe proposed statement was different from and inconsistent with the statement previously made to the Levys.
“ 3d. Because the same was not spontaneous, but appeared to have been made after the defendant must have considered of his defense.” We will notice these reasons of the learned judge in the order stated.
1. That defendant was under arrest for the same offense. Let this be conceded, certainly it does not follow that if the facts pro*398posed are relevant and otherwise competent, they are not incompetent for defendant because he ma}^ be in custody or arrest for the same offense. Article 750, Code Criminal Procedure, can never be used against a defendant so as to deprive him of legitimate evidence. This article is a shield, but never a weapon to be applied to a defendant.
2d. “ Because the proposed statement was different from and inconsistent with the statement previously made to the Levys.” If so nearly connected with the main transaction as to be a part thereof, the fact that the declarations were the same, conflicting or inconsistent, has never been made a test of admissibility. The Levys may have mistaken or misapprehended defendant, or defendant may have misused words, or have failed to express his own meaning. (1 Greenlf. Ev., 214.) That a witness may misapprehend what is said by a party is demonstrated in the testimony of the Levys. J. W. Levy says that defendant stated “ that he had done it to save his own life” Ed. Levy, who heard J. W. Levy’s question and defendant’s answer thereto, says that defendant said, “ I had to do it to save myself or to protect myself.” How in this the word “life” is not mentioned. Again, J. W. Levy makes him say “he had done it to save his own life;” Ed., that he “had to do it to save myself or protect myself.” It will be seen that while these different statements are in substance the same, yet the words used by defendant are not the same; and hence we must infer that these witnesses, the Levys, reproduced in their testimony not the language actually used by defendant, but the ideas which each believed he conveyed. If they intended to reproduce the exact language they certainly did not understand him alike, and one of the two most evidently misapprehended defendant; and if one made a mistake as to what words defendant said, may not both have been mistaken? Can we, as a postulate, assume the infallibility of a witness, and preclude the testimony of other witnesses which is relevant and competent but for the assumed infallibility of the first? We think not. .
3d. “ Because the same was not spontaneous, but appears to have been made after the defendant must have considered of his defense.”
We suppose the learned judge reached the conclusion that the statement made was not “spontaneous,” because inconsistent with the statement previously made to the Levys. Let us examine this matter. The rule is that the confessions of the accused are to be received with caution. Why ? Because, among other reasons, “ the party may fail to express his own meaning.” Ed. Levy understood *399him. to say, “I had to do it to save myself, or to protect myself.” Ed. may have understood him correctly. To Wandelohr he stated: “I done it to protect my wife and child.” How are these statements inconsistent? Let us concede that he had stated to Ed. Levy that he had to do it to save or protect himself. Would this not be true, and yet consistent with the statement that he did it to protect his wife and child ?
[Opinion delivered February 24, 1886.]For the purpose of this discussion, he, a short time before the killing, was informed by his wife that deceased had made an attempt upon the virtue of his wife,— to defile his bed and make of defendant a miserable cuckold. If true, were the wife and child alone affected? To an honorable man was not this “the most unkindest cut of all,”— the most deadly stab, attempted upon defendant? How, then, when he stated that “he had to do it to save or protect himself,” may he not have been referring to this very matter,— the advances of deceased towards his wife? If so, there is no conflict in the statements, and hence no grounds to support the conclusion of the trial judge that the statement was not spontaneous.
Upon another ground we think this statement admissible. The State introduced in evidence the statements made to the Levys by defendant. How, as they disagreed as to what defendant actually stated, and as the version of Ed. Levy is susceptible of explanation, to fully explain this statement the defendant had the right to give in evidence his statement to Wandelohr. (See this subject most fully and clearly discussed in Greene v. The State, 17 Texas Ct. App., 395.)
We are of opinion that the court erred in rejecting the proposed evidence; for which the judgment is reversed and the case remanded for another trial.
Reversed and remanded.