Appellant was awarded a life sentence for murder in the first degree.
The record discloses that appellant was a cousin of Mrs. Dixon, wife of deceased, Tom Dixon. Trouble had been existing for some time between deceased and his wife, who were elderly people, which seemed about to eventuate in a final separation. Appellant had been living at the residence of the Dixon family for some time prior to the homicide, and advised against the separation, insisting they could and should adjust their differences, and live as husband and wife. Deceased and wife had grown children. Deceased had made remarks to the effect that there would be trouble in the family, and concluded a separation was inevitable, and had requested appellant to assist him in dividing the property. Mrs. Dixon had also made the same request. Appellant had declined to do so, but finally, on the morning of the difficulty, agreed to assist deceased in such division. After breakfast, appellant had gone to the lot or barn, and was currying his horse, when deceased, who seems to have been angry, went to the lot, armed with a pistol. After talking a while he and appellant began dividing the property, and had agreed upon a partial division while standing in the lot. Some of the *Page 300 horses, which were in sight, and the subject of discussion between them, were a little distance away, and they moved to the lot fence nearer where the horses were and stopped. Under the facts, it is disclosed that appellant was in a good humor, deceased a little angry, but the anger seems not to have been directed, under the view of witnesses, at appellant, but at his family, or maybe more especially his wife. Shortly after reaching the fence, four shot were fired. Some of the witnesses testified the first two were almost simultaneous, then a slight interregnum, and two more; and, by some of the witnesses, as being so close together they could hardly detect the difference between the shots. One or two of the witnesses describe the shots differently, stating there was one shot, then a slight intermission, followed by two more shots almost together, then a slight interregnum, followed by a fourth shot.
Appellant's version of this matter was put in evidence by the State, and testified to also by himself. It is to the effect that, while standing at the fence, he heard a pistol click, followed by the remark from deceased, "By God, I will settle with you right now." Appellant was standing with his elbows on the fence, and was unaware that deecased was angry; that the click of the pistol and the remark of deceased were the first intimation he had that deceased was angry with him; that, as he turned, the deceased fired. Appellant knocked the pistol up, the ball going through the brim of his hat. The second shot went through appellant's coat in front near the bottom on the left side, setting the coat on fire. By this time appellant had secured his pistol. Deceased turned slightly to the right as appellant fired. The ball struck deceased in the neck to the left of the spinal column, ranged forward, coming out near or about the corner of his mustache, below the cheek bone. The second shot went in near the top of the left ear, clipping away a portion of it, and passing out a little back of the center of head. His coat was on fire when he reached the residence, some sixty or seventy yards from the scene of the shooting.
There were no eye witnesses. Reed, the first witness who reached the body of deceased, remained there at the request of appellant, who went to the county seat and surrendered to the officers, states that, when he reached the body, the pistol was in the right hand of deceased, and that he did not touch or move it. Prior to the homicide, the pistol used by deceased had been secreted by members of his family, in order to prevent deceased from getting it. This seems to have been on account of the fact that deceased had made statements there would be trouble shortly in his family. The theory of the State was that appellant shot deceased in the neck, while standing up; that this shot produced death, and, after he fell, the second shot was fired, which entered the head near the top of the left ear, passing out through the back of the head, while the body of deceased was on the ground. Appellants' statement and testimony was to the effect that both shots were fired while deceased was standing, or rather, that the second shot was fired as he was falling. It was the *Page 301 further theory of the State that, after deceased had fallen, appellant took the pistol from the body of deceased, and fired the two shots, one passing through the brim of his hat, powder burning it, and the second through his coat, as above stated. A son of deceased testified that he had been at the lot with appellant, and, in returning to the residence, met his father going in the direction of the lot. "I met him there in front of the dug-out, and I said I would go down to the lot with him; I thought I would go down there and see what he wanted me to do that day, and and he told me to go back to the house; I asked him what was the matter with him, and he said nothing, but insisted on my going back to the house; I believe that he said that he and Hickey had agreed to have a settlement or a division; when I met him, he seemed mad or talked like it; he went on toward the lot after I left him; I saw him and defendant after he got down there in the lot about the middle of the lot; they were standing there talking; I never saw them any more prior to the killing; * * * when the shooting first commenced I was then outside the door a step or two; I had started down to the lot; I first had search made for the pistol, and could not find it, and then started to the lot, and heard the shots; Mr. Hickey was in a good humor, and pa acted mad that morning; Mr. Hickey was representing my mother in the division of the property." We think this a sufficient statement of the case, without further detail of the testimony, to illustrate the questions reviewed.
Exception was reserved to the testimony of several witnesses who examined the ground at the point where the body of deceased was supposed to have been found when shot, and the discovery of a bullet at that point. This shows that John Webb, using a knife, dug a hole some three or four inches square, where they state the head of deceased lay when killed. While he was digging up the ground with his knife, the witness Hamm "had a sorghum stick scraping around there in the dirt." He picked up a bullet, and laid it in the hand of witness Webb. This occurred on May 24th, after the killing on the 11th of the preceding February. These witnesses had never been at the place since the homicide but once prior to this examination, and this was on the day subsequent to the killing. They sought to identify the place where the body lay by reason of the fact they had been there on the day subsequent to the killing, and, further, by the fact that some buttons were found at the place, which were left as a deposit from the burning of the bloody clothes of deceased; and the further fact that it was near some post holes, where the fence had stood at the time of the homicide — the fence having been removed or burned. The witnesses further show that quite a lot of stock had been fed in and around the place where the body lay, and had trampled up the ground as stock usually do under such circumstances. It is further shown that the supposed place where the body lay on the day following the homicide had been dug up with a spade by one Gatling. *Page 302
We believe, under the circumstances, this testimony should have been excluded. Usually admission of evidence of this character is permissible, and it would go to the jury for what it was worth. It will be observed, however, that none of the witnesses undertake to describe the bullet said to have been found on May 24th, as to its size, or weight; in fact no description of it is given further than the mere statement that it was a bullet. The evidence is undisputed that both pistols used during the fatal affray were 44-caliber. No witness undertakes to show, even as remotely as venturing an opinion, that the bullet said to have been found at the place of the homicide corresponded to a 44-caliber. Conversations and acts occurring between the parties at the time of finding the bullet and those that led up to their going to the point of the homicide for the purpose of investigating, were also admitted and were included in the bill of exceptions. Conversations and occurrences of this character are matters occurring between third parties, and inadmissible. Lawson v. State, 17 Texas Crim. App., 293; Canada v. State, 29 Texas Crim. App., 537; Clay v. State, 40 Texas Crim. App., 556; Ballow v. State, 42 Tex.Crim. Rep.. Before evidence in regard to the bullet alleged to have been found upon the ground could be introduced, it must be shown to have some connection, or in some manner tend to solve some issue in the case. In other words, it must be in some way connected with or relevant to the matters at issue.
This is not within the rule announced in Walter Yancy v. State, decided at the present term. The court charged the jury: "If, from the evidence, you believe defendant killed said Tom Dixon, but further believe that, at the time of so doing, deceased had made an attack on him, which, from the manner and character of it and the relative strength of the parties, and defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation and fear of death or serious bodily injury; then, acting under such reasonable expectation or fear, defendant killed deceased," etc., you will acquit him.
Exception was reserve to this charge. This was a charge on actual danger, and ought not to have been limited with reference to the relative strength of the parties, and defendant's knowledge of the character and disposition of the deceased, etc. There was no evidence in regard to these matters. Appellant had the unquestioned right to defend against an attack made on his person in the manner indicated by his testimony. If he was fired upon twice by deceased with a six-shooter, as stated, it would make no difference what was the character or disposition of deceased, or appellant's knowledge of those facts. His right of self-defense was complete if it was in defense of himself against such an attack. The charge burdened appellant's self-defense with circumstances and facts not admitted. This was error. Brady v. State, 65 S.W. Rep., 621; Warthan v. State, 41 Tex. Crim. 385, 55 S.W. Rep., 55; Bracken v. State, 29 Texas Crim. App., 362, 16 S.W. Rep., 192; Steagall *Page 303 v. State, 22 Texas Crim. App., 491; Hackett v. State, 13 Texas Crim App., 400.
We are of the opinion that appellant should have been permitted to prove by the sheriff that, in his opinion, the shot-hole in the brim of his hat was caused by a bullet.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.