Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of four years.
Appellant complains that the court erred in excluding the testimony of Dr. W.C. Jones as to the statements made by deceased relative to the difficulty between deceased and defendant. It appears from the bill of exceptions that appellant offered a written statement showing the dying declarations of deceased. Thereupon appellant stated to the court that the written dying declaration did not contain all that was said by deceased at the time said statement was reduced to writing and signed by deceased; that appellant could and would have proved by Dr. Jones the following as a part of the statement actually made by deceased at the time referred to, to wit: "I think I asked deceased the reason of the difficulty, and he said they had been in some trouble the day before about an account. He said that on the ground [meaning the picnic ground] he had raised the difficulty. That he said to Mr. Herd [defendant] that the manner in which he treated him the day before was a dirty trick, and one question led to the declaration that he [deceased] called Mr. Herd, there on the ground at the time, a `damn dirty son of a bitch' and a `cock-sucking son of a bitch.' I warned *Page 577 him of the nature of the language, and he [Farabee, deceased] said it was the truth. I asked him what then took place, and he said, `Herd shot me.' The written statement I saw did not contain all that he [Farabee] said. If this statement here in evidence is the one, it is not full enough. It don't contain that dirty language, and it is not full enough. Dr. Russell wrote the statement down, and I suppose did not hear that, or else did not care to write it down. I suppose Russell's reasons for not writing it down were on account of its extreme obscenity." The written statement, as shown by the record, is as follows, to wit: "Walnut Springs, Texas, May 30, 1901. Ed Herd shot me. I had nothing to shoot with. We were not on good terms. He shot me because I told him he was dirty. I did not offer to hit him. After he shot me, he shot again. I was standing face to face when he shot, and the first shot took effect, and then he shot at me again. The difficulty occurred about a check, and he said that the check wasn't enough, and I told him I didn't owe him the $6, but he said I did. George Farabee told to-day that he was a dirty son of a bitch, and then the shooting commenced. The above statement is true and correct. [Signed] George Farabee." The bill of exceptions shows that the declarations that were not reduced to writing, as stated above, were made contemporaneously with the written declaration; and there is no question but that the proper predicate was laid for the introduction of both the written and oral declarations of deceased. The State objected to the testimony of Dr. Jones for the reason that the statement about which he proposed to testify was reduced to writing, read over to the witness, signed and pronounced correct by him, and signed by witnesses, and defendant has introduced said statement in evidence to the jury; and because defendant is seeking to destroy and add to a written statement covering the subject matter about which this witness proposed to testify; and because it appears from said witness that deceased at the time he made said statement was not conscious of approaching death; and because said statement of deceased was elicited by questions propounded by Dr. Jones. The court sustained the objections, and appends the following explanation to the bill: "I sustained the objections of the State to this evidence. Even if it was made to appear that deceased was conscious of approaching death, and believed he was going to die, this evidence would not be admissible, for the reason that defendant had introduced in evidence a written statement of deceased, taken down at the time, and which is admitted to be the statement about which Dr. Jones proposed to testify. This statement was read over to deceased, and signed by him, and witnessed as a correct statement; and, under the authorities, I am inclined to the opinion that the written statement is to be taken as correct, and the presumption is that verbal contentions of what deceased said at that time are not admissible to change the written statement.' We think the court erred in refusing to permit the introduction of the testimony of Dr. Jones. If a dying declaration *Page 578 when made is reduced to writing, it is not competent for the prosecution to prove it by parol evidence without accounting for the nonproduction of the writing. But if deceased made the declaration on several occasions, the fact that it was reduced to writing on one occasion does not preclude parol evidence of the unwritten declarations on the other occasions. Krebs v. State, 8 Texas Crim. App., 1. Furthermore it is competent for defendant on trial for murder to impeach the dying declaration of deceased, inculpating him as the slayer, by proving the statement made by deceased contradictory of his dying declarations; and it is reversible error for the court to refuse to permit such impeaching testimony to be introduced. Felder v. State, 23 Texas Crim. App., 477. For a discussion of a similar question, see Drake v. State, 25 Texas Crim. App., 293. See also Underhill, Crim. Ev., sec. 112. It follows that, if appellant introduced a written statement which does not contain all of the dying declarations of deceased, he can supplement said statement by other and additional testimony, where the proper predicate is made, indicating either that deceased made statements not embodied in the written declaration, or that he made other statements as dying declarations contradictory of the written statement. We understand from the bill of exceptions here under discussion that appellant was merely attempting to supplement the written declaration by declarations not reduced to writing. This is admissible. As indicated above, if the State is relying upon the written dying declaration, it must first introduce said statement, or account for its absence, before it would be permitted to introduce oral testimony of the dying declaration. We take it that this rule would apply to defendant as well as to the State. We know of no law or decision that would confine either the State or defendant to the written dying declaration, where other and different statements are made contemporaneously with the written declaration, or made subsequent to the written declaration. Therefore we hold that the learned judge erred in excluding this testimony.
Bills of exceptions numbers 2 and 3 insist that the court erred in failing to limit certain testimony offered by the State which was intended to impeach the testimony of defendant's witnesses. In view of another trial, we deem it only necessary to say that where this testimony is introduced for but one purpose (i.e., for the purpose of impeachment), and it is calculated to injuriously affect defendant's rights in the trial unless limited to said purpose, the court should so limit the same. This we understand to be the general rule in reference to impeaching testimony.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.