During the last term of this court the judgment in this case was affirmed, opinion by Judge Harper concurred in by Judge Prendergast. At the time of the rendition of the opinion, I simply entered my dissent with a view of writing out my views later. Appellant filed a motion for rehearing in the meantime. Upon the hearing of this motion the rehearing was granted and the judgment reversed and the cause remanded. I concur in the reversal and am of the opinion that there are other questions in the case of importance and of such erroneous nature as should also have been mentioned in the opinion of reversal. This homicide occurred on account of the illicit amours with the sister of the deceased. The contention of the State is that appellant had had carnal intercourse with the girl and was the father of her child. The contention of appellant was that Gibbons had been having intercourse with deceased's sister for quite awhile and *Page 32 was the father of the child and that he, appellant, was not the father of the child. There is considerable testimony in the record in regard to this matter which I do not care to state, but will give a substantial statement in regard to that issue: The witness Crowe, father of the girl, testified that his daughter told him that appellant was the father of the child and that he and his son, deceased, went with his daughter to where appellant was for the purpose of making him marry her and give the child a legitimate name. The language was that he went to the defendant and said: "I want to give my daughter and her child a name." This witness further stated that his daughter had been in Fort. Worth a part of the time and in Dallas part of the time, and he first learned of her pregnant condition about the 22d of September, and learned it from Dr. Braswell in Fort Worth; that he immediately got on the train and went there. He said Dr. Braswell informed him where she was and he went to see her. That during the conversation with her she said appellant was the father of her child; that he intended to bring her home, but she was in family way and he left her until after her confinement; that after her confinement she came home along about the 3d or 4th of November. Appellant denied most emphatically being the father of the child, and the issue along this line was thus formed.
The first bill of exceptions found in the record recites that while W.C. Crowe was testifying for the State, he was permitted, over appellant's objection, to state that his daughter, Dossie Crowe, told him that P.K. Holmes was the father of her child; and was permitted further to testify that from the conversation which Crowe claimed to have had with his daughter at the Rescue Home in Fort Worth, in connection with the conversation he had with Dr. Braswell in Fort Worth at the same time, he arrived at the conclusion that P.K. Holmes was the father of his daughter's child. The defendant then offered Dr. Braswell, who would have testified that in his office at Fort Worth he told W.C. Crowe that T.E. Gibbons had sent money to Miss Crowe, and that Gibbons had been in Fort Worth and made arrangements for the care of Miss Crowe at the Rescue Home and agreed to pay $100 to have the child adopted, and that thereupon said W.C. Crowe asked him what his opinion was as to who was the father of the child, and witness replied, "from the facts in hand, he would certainly think that Ed Gibbons was" (meaning T.E. Gibbons). The bill further states that Dr. Braswell would have testified that on the day before Miss Crowe went to the Rescue Home he had found her and T.E. Gibbons standing up, and Gibbons had his arms around her, in one of his private rooms in his office. And further recites that said witness would have testified that he sent telegrams to said Gibbons, urging him to send money for Dossie Crowe, and had received from said Gibbons the following letter: *Page 33
"Toyah, Texas, Aug. 12-1910.
"Dr. R.O. Braswell,
"Ft. Worth, Texas.
"Dear Sir: In compliance with my wire of this date I herewith enclose $25 which please hand to the party. I have heard a great deal of you and must trust a great deal to you. Do not write me if you can possibly help it. I will be down to see you next week and acquaint you with the circumstances, and make further arrangements. Please burn this letter. I beg to remain,
Yours truly,
T.E. Gibbons."
This was offered for the purpose of showing defendant was not responsible for the condition of Dossie Crowe, and to impeach the said statement of Dossie Crowe that the appellant was the father of her child and that he was the only person who had had intercourse with her; and to corroborate the defendant Holmes in his testimony that Dossie Crowe had told him that Ed Gibbons was the father of her child and that she had had intercourse with said Gibbons on divers occasions. The testimony offered by the defendant to meet that of the State was ruled out on the objection of the State that it was irrelevant and immaterial and "not shown to have been communicated, the facts or fact, to the defendant, prior to the time of this tragedy, and the only bearing, if any it could have on it, would be the state of mind, if at all, of W.C. Crowe, which would be immaterial to any issue in this case." My brethren, in the original opinion, hold that this bill of exceptions does not show error. With this conclusion I can not agree. After having permitted Crowe to testify as to his visit to Dr. Braswell and his conversation, conclusions, etc., defendant was authorized to meet those matters as best he could. While it may be true that the testimony of Crowe was inadmissible, yet the court permitted it to go to the jury and, having gone to the jury, then appellant had the right to meet those matters with the best available testimony, even if it had no higher dignity as evidence than that introduced by the State. It is a settled rule and one that is correct, fair and just, that wherever one party introduces a fact or circumstance against the other, the one against whom it has been introduced has the right to meet it as best he may, and he can meet this with testimony of the same character and nature. If that introduced by one party is hearsay and it goes to the jury, the other party can meet it with the same character of evidence. It was made a material question in the case as to whether Gibbons had had intercourse with Miss Crowe in the first place, and in the second place, that he was the father of her child. The State was claiming that Gibbons had not had intercourse with her — introduced evidence to that effect — and that appellant *Page 34 had and was the father of her child. An inspection of this entire bill, as above shown, demonstrates, in my judgment, that appellant was entitled to introduce the testimony offered by him under all the decisions in this State. The authorities are quite numerous. In Skidmore's case, 57 Tex.Crim. Rep., it was said, where upon trial for incest, the State had been permitted to introduce testimony that the woman with whom the incest was alleged to have been committed had a child within nine months after she stated defendant had carnal intercourse with her the previous December, defendant had the legal right to introduce testimony to show that he was not the father of the child, and that other parties had carnal intercourse with prosecutrix about that time.
In Bader's case, 57 Tex.Crim. Rep., Judge Ramsey, writing the opinion of the court, said, where the testimony of the prosecutrix, who was under the age of consent, was that she had not had intercourse with any other person than defendant, and there was testimony from physicians as to her physical condition, it was reversible error not to have permitted the defense to introduce testimony tending to show that prosecutrix was guilty of acts of intercourse with other persons than defendant, both to show her physical condition and for purposes of impeachment. The Bader case followed Bice v. State, 37 Tex.Crim. Rep.. The Bice case was approved in Knowles v. State, 44. Texas Crim. Rep., 322. For a collation of numerous authorities, see Branch's Criminal Laws of Texas, sec. 707. Upon another trial if this issue is in the case, in my judgment, the testimony offered by appellant should be introduced. In other words, if the State should undertake to show that appellant was the only man who had intercourse with Miss Crowe, then he could unquestionably show that other parties had, and should the State undertake to show that he was the father of the child, then he could meet that with the testimony that he was not the father of the child. The authorities cited fully sustain this proposition. Even if an authority were not extant the rule is a just one, a fair one and correct.
There is one other question that I desire to notice just briefly. My brethren, in the original opinion, set out the charge of the trial court on reasonable doubt and the presumption of innocence. An inspection of that charge, which is correctly copied in the opinion from the trial court's charge, shows it to be a charge on the weight of the evidence and is rather a dissertation on the two questions. This has been condemned by all the decisions of this court in this State in the history of our jurisprudence. My brethren suggest that upon another trial it will be well enough to conform to previous decisions but intimate that they would not reverse the judgment for this reason alone. This character of charge, in this State, has always been held reversible and in direct contravention of the statute, which expressly prohibits the court from charging on the weight of the evidence. For a collation of the authorities, see Branch's Criminal *Page 35 Laws of Texas, sec. 718. It is there stated that a charge on reasonable doubt should be given in the language of the statute. Attemps to amplify it, or explain it, or belittle it, almost invariably lead to a reversal. Bray v. State, 41 Tex. 560; Schultz v. State, 20 Texas Crim. App., 315; Bramlette v. State, 21 Texas Crim. App., 611; Holmes v. State, 9 Texas Crim. App., 313; Cleavinger v. State, 43 Tex.Crim. Rep.; Smith v. State, 9 Texas Crim. App., 150; Robertson v. State, 9 Texas Crim. App., 209; Johnson v. State, 27 Texas Crim. App., 163; Wallace v. State, 9 Texas Crim. App., 299; Fury v. State, 8 Texas Crim. App., 471; Cohea v. State, 9 Texas Crim. App., 173; McPhail v. State, 9 Texas Crim. App., 165; King v. State, 57 Tex. Crim. 363. For other authorities see section of Branch's Crim. Law, above cited. In concurring with the reversal, I desire to make the above remarks.
I concur in the reversal.