In dictating the original opinion we stated the length of appellant's sentence to be five years. The conviction was for eight years with indeterminate sentence of from five to eight, and the clerk of this court noted the term on the outside of the record as being five years which caused our erroneous statement, which is here changed and the sentence is referred to as being eight years, our attention having been called to this error in the motion for rehearing.
Appellant again insists that it was error to allow Reuben White's testimony which is referred to and discussed at some length in our original opinion. The authorities cited by appellant, upon careful examination, will be found differing in facts and their consequent principles, from the instant case. In the Strange case, 42 S.W. Rep. 551, this court says:
"And, in regard to the threat made by defendant against his brother Lewis, it is absolutely unconnected with any fact or circumstance shedding any light upon the case; and in that connection the fact that he `laughed, and said he would kill somebody before Saturday night,' could have no significance as tending to make a solution of any act of defendant that was relevant and provable in the case. There is no pretense that he referred to the deceased, but they were then on friendly terms."
In the Godwin case, 43 S.W. Rep. 336, the opinion states: "We hold the rule to be that evidence of general threats made by the defendant on trial for murder, when such threats are not shown to be directed toward the person slain, or to embrace such person, are inadmissible." Referring to the threats made in that case, the court says that the evidence does not even remotely suggest that they were directed at the deceased.
In Holley's case, 46 S.W. Rep. 39, this court did not hold the threats inadmissible, but on the contrary used the following language, which is in support of the rule announced in the instant case:
"It occurs to us, however, from the other testimony in this case, that, notwithstanding deceased was not named in connection with the threats, it can be reasonably inferred that the threats were directed against him. Appellant was shown to have had malice against him, *Page 155 and he is not shown to have entertained hostile feelings towards any other person in the community."
In Fossett's case, 55 S.W. Rep. 497, it was shown that appellant said he wished he had a saloon so he could shoot a bartender. This court said:
"While it is always important to show the state of mind of defendant before the killing, as indicating malice, yet this state of mind must in some manner be directed towards deceased, either by direct expression or the remark must, within its scope, embrace deceased. Neither of these conditions are shown here. It was not directed towards him by name, nor did it embrace him by intendment, inasmuch as deceased was not a bartender."
Discussing the statement of the accused, that when he went after anyone he generally got them, in the Lucas case, 95 S.W. Rep. 1055, it is stated: "It is clear from the bill of exceptions and the witness' testimony, that the remark was made before, and had no reference to deceased, for appellant and deceased up to this time had been friends."
In Barbee's case, 97 S.W. Rep. 1059, where appellant was charged with the murder of Jenkins, it was held improper to prove that he said, "I am loaded for John Davis or anyone else." Without discussion of the principle, Godwin's case, supra, is referred to as authority for this conclusion. In Fuller's case, 113 S.W. Rep. 541, discussing the admissibility of the statement of the accused that he was going to kill a Dutchman or run him out of the country, this court said:
"We think probably this testimony was not admissible. It has occurred to us that the decisions of this court, at least in the language of some of them, have carried the rule rather further than as an original proposition the writer should have been inclined to go, but where, as in this case, there is no reference to the deceased, no suggestion in the testimony that his troubles with appellant were the subject of conversation and nothing in the language of the parties to constitute even a remote reference to or connection with the deceased, it would seem under the authorities, and in reason, that such a statement ought not to be received. We can well understand how the evident idea of the court below that it was a question for the jury might apply if there was enough in the testimony to leave it open to a fair inference that the threats introduced had reference to the deceased."
Reference to our statement in the original opinion makes it clear that in the conversation testified to by White, the deceased was probably under discussion by appellant and his son and was presumably the party referred to in the testimony objected to. It is not necessary for deceased to be named in the threat in order to make same admissible, and in passing on the question as to whether the threat so made *Page 156 referred to or included the deceased, its language will be viewed in the light of the entire record.
The motion for rehearing will be overruled.
Overruled.