The State and the accused relied each for support of their respective theories in this case upon res gestae statements of deceased. No eye-witness testified for either side. Meredith and Smith, both State witnesses, were near the scene of the shooting, heard the only shot fired and went to the place. They found in the house only deceased, who was shot one time, the bullet entering on the inner side of the leg above the knee, and being taken out below the knee. Meredith swore that deceased told him that appellant shot him for nothing. He also testified that deceased told him that if he got up from there he would get appellant. This latter statement was an expression of deceased relative to his own feeling and should not be admitted if this case is ever tried again. Smith swore for the State on rebuttal that deceased told him at said time that appellant shot him. He did not set out the statement that appellant shot him "for nothing." For the defense, Watkins, who lived across the street from where the shooting took place and who heard the shot and went over, swore that deceased told him that it was an accident. The city marshal of the town of Ennis got to the place a few minutes after the shooting and testified also that deceased told him it was an accident. Likewise the doctor who got there about ten minutes after the shooting, says deceased told him it was an accident. The occurrence was late in the afternoon or in the nighttime.
As an original proposition it may be seriously doubted, under the facts of this case, if such testimony furnished sufficient proof of a shooting upon malice. Appellant and deceased were brothers-in-law, lived in the same house, worked for the same railway company, are not shown to have ever had any difficulty or trouble of any kind, the record is free of threats, and, save and except the res gestae statement above referred to, presents no proof that deceased and appellant had ever had a cross word or disagreement. We are informed by the record that deceased walked into the room where appellant was and that they were about eight feet apart when the pistol was fired. The place of the wound and the direction taken by the bullet strongly support the inference that there was no effort to kill. One man shooting at another a distance of eight feet, if to kill, would likely aim at the head or body. Suppose deceased said to Meredith "He shot me for nothing," does this necessarily mean that the shooting was not an accident. A man accidentally shot, is shot for nothing. He receives a wound without desert or expectation. *Page 178 No cause is known or appears to the injured party for the shooting. Whether the statement attributed by Meredith to deceased "He shot me for nothing," is enough to support the legal theory of a malicious shooting, must depend upon the facts of the case. We have here the same declarant, in the next breath so to speak, saying that the shooting was an accident, i. e., not a malicious shooting. To another and another he repeats that it was an accident. The fact that he never repeated the statement that "He shot me for nothing," connected with the fact that always afterward he said it was an accident, would seem to indicate that by saying "He shot me for nothing," deceased meant nothing more than that he had given appellant no cause for shooting him. In such case each repetition by deceased of the statement that the shooting was an accident, should have weight as a declaration by him in contradiction of the State's interpretation put upon the words "He shot me for nothing," and if this expression be relied on as the only support of a theory of murder, i. e., a shooting upon malice, then this court finds itself in such condition of doubt as that we are unwilling to let this verdict stand. This is not a case of conflicting testimony, some for and some against, — in which case we say we will not disturb the verdict. It is a case in which a man is shot by his brother-in-law, and on the spur of the moment says "He shot me for nothing," but who said to a number of others in a few moments, "It was an accident." Admitting that the shooting would necessarily be for nothing if same was an accident, and that if it was an accident that appellant should be acquitted, we find ourselves confronted with the proposition that a citizen of this State, black and humble though he be, deprived of eight years of life and liberty, upon an unsupported interpretation of a statement which is explained, contradicted and overcome by other statements of deceased.
If the two res gestae statements, viz: the one offered by the State that "Frank shot me for nothing;" the other offered by the appellant that the shooting was an accident, be deemed entirely irreconcilable so that one being true the other must be held untrue, — then the proposition of self-contradiction, treated at length by Mr. Wigmore in Chap. 34, Vol. 2, of his work on Evidence, would be presented. This question is somewhat analogous to our well settled doctrine upon which supporting consistent statements are deemed of weight when the truth of any declaration in evidence is attacked by proof of other declarations and statements at variance therewith. The only apparent distinction between the question at issue in such case, and *Page 179 that now before us, would be that in res gestae statements the veracity of the declarant is not a consideration, it being the established holding that such statements do but represent the facts speaking through the declarant, and are properly held to be not statements of the declarant about the facts.
There seems little question but that the argument set out in a bill of exceptions, as used by private prosecution, was in violation of the rule against referring to the failure of the accused to testify, but said bill is so qualified by the trial court as not to present reversible error.
Having such serious doubt of the sufficiency of the facts in this case to support beyond a reasonable doubt the theory of a killing upon malice, we are of opinion that the case should be reversed.
The motion for rehearing is granted, the judgment of affirmance set aside, and the case is now reversed and the cause remanded.
Reversed and remanded.
ON STATE'S MOTION FOR REHEARING.