White, Presiding Judge.
Preliminary to a discussion of the main question which we propose to present, we deem it essential to give a brief .summary of the salient features of the evidence gleaned from the statement of facts in the record.
On Saturday, September 26, 1884, appellant Brumley shot and killed one Isaac McAdams, in the road immediately in front of his, Brumley’s, residence. A few days before the homicide some one had shot and killed a horse belonging to appellant, and one Williams, who was a nephew of the deceased, had been arrested under a complaint charging him with this offense. Williams’s case was tried before a justice of the peace, at Caddo Mills, on Thursday, two days before the homicide.
The McAdams family were very much incensed at the arrest of Williams, their relative, and one of the older members of the family had declared that, on the day of the court, a crowd would go to Caddo Mills “ and raise hell.” After the trial of Williams, seven members of the McAdams family commenced the difficulty with one Buce, a step-son of the appellant, charging him with having sworn a lie on the trial of Williams. Then the entire party began a series of abuse of the officers of court, and of Brumley, ■ this appellant. They were very boisterous, threatening, and profane. Brumley at the time was in a store house, but could hear what was transpiring. A constable commanded the peace and endeavored to quell the disturbance, and was threat[237]*237ened with personal violence by Isaac McAdams, the deceased. Finally the magistrate restored quiet. Isaac McAdams, the deceased, declared that peace was not what he wanted; that he wanted war or blood; and he notified the justice that he must not issue any more writs, not even a subpoena, against any of his kith or kin. He threatened Brumley’s life in Brumley’s hearing, saying that he would cut his heart out, chew it up, and spit it out with as much pleasure as he could take a drink of water.
After quiet was restored, and the McAdams party had left, Brumley 'went to the justice of the peace, and proffered to make an affidavit against Isaac McAdams, so as to have him put under a bond to keep the peace; but the justice, fearing more trouble, dissuaded him from it. It is shown by the evidence that McAdams, the deceased, was a violent and dangerous man, and one likely to execute any threats made by him; a muscular man, weighing from one hundred and sixty to one hundred and seventy pounds. Brumley was a very small, weak man, from .one.hundred to one hundred and ten pounds weight, crippled in one of his hands, and nearly blind.
On the morning of the homicide Brumley, the defendant, was sitting on his yard fence, a few feet in front of the door of his house. Two men; Grade Smith and John Brem, were at his house, Smith in the yard near him, and Brem in the door. A man was seen riding up through the pasture. Smith told Brumley the man was Isaac McAdams. Up to this point there is no conflict in the evidence. We will let each man tell what he Sciw: o
Newton Watson, a transient man, said Brumley got off the fence before the deceased got up to him, and some words he did not hear were spoken, when Brumley said: “I understand you say I killed my own horse?” To which deceased replied: “If I said it once, I say it again,” when Brumley replied: “You are a horse thief,” and witness ran off.
John Brem, a witness for the State, said the first words he heard was McAdams’s declaration to Brumley: “You are a damned horse thief, and I believe you killed your own horse,” to which Brumley replied: “Can you prove it?” when deceased said: “J don’t know as I can, but you are a God damned thief,” and started to throw himself off his horse, and appellant at the same time drew his pistol and snapped it, and after both dodged, as McAdams approached Brumley, he fired the fatal shot while [238]*238deceased was so close to him that his. head fell at appellant’s feet.
Smith alone saw the whole of the difficulty. He tells us that as McAdams rode up, Brumley said: “ Good morning,” to which an inaudible reply was made, when appellant said: “ I understand you said I killed my own horse,” to which deceased replied: “Yes, I did, and you are a God damned thief.” Brumley replied: “I want you to take that back. Can you prove it?” And deceased said: “ You are a God damned thief and a murderer, * * * and I am none too good to kill you,” when" appellant drew his pistol just as deceased was getting off his horse on the opposite side of appellant, and appellant snapped but the pistol failed to fire, and as deceased came around the horse towards Brumley, he fired, when deceased was so close that his head fell at appellant’s feet. These are the material facts as they were made to appear at the trial.
Amongst the errors complained of, two, as shown by bills of exception, relate to the admission of evidence over the objection-of defendant, and are in regard to the same subject matter. This evidence was offered by the State, manifestly with a view of showing that the deceased, Isaac McAdams, in passing by defendant’s house on the morning of the homicide did not do so for the purpose of encountering defendant, or of provoking a difficulty with him.
In substance, the testimony objected to, and the objections to the same, are sufficiently stated in appellant’s brief, as follows:
“Yancey McAdams testified that, on the morning of the killing, the deceased was at his (witness’s) house, and they had some conversation about hauling hay they had previously cut, and they needed another wagon, and deceased was on his way to borrow a wagon from Robert McAdams. This was objected to. 1. Because it was immaterial. 2. Defendant had no notice of the purpose of deceased in coming to or by his house. 3. The evidence was calculated to militate against the accused and impress upon the jury that deceased was there for a lawful purpose, and not to execute the threats previously made. 4. It not being shown that Brumley knew the motive of deceased in riding towards him so soon after the threats were made, Brumley could act on reasonable appearances of danger; whereas, the evidence tended to show no danger existed, and in the minds of the jury destroy Brumley’s legal right of self defense. 5. The evidence • was hearsay in its 'character. James McAdams, a [239]*239State’s witness, was asked what deceased went to Brumley’s for, which was objected to on the same ground. He answered, ‘to borrow a wagon from Robert McAdams. ’ As already stated, the proof showed that Isaac McAdams had threaténed the life of Brumley; that he was a violent and dangerous man, and reasonably calculated to execute a threat, and that he went into the pasture and rode up directly in front of appellant’s house, where the tragedy took place.”
Was this evidence admissible? It is a general rule that, “in cases where it is material to inquire into the demeanor, conduct, and mental feelings of an individual, at a particular period, the declarations made and the expressions used at the period in question are in their nature original evidence * * * * Verbal and written declarations are often said to be admissible as a part of the res gestee. As such they are most properly admissible when they accompany some act, the nature, object, or motives of which are the subject of inquiry.
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White, Presiding Judge.
Preliminary to a discussion of the main question which we propose to present, we deem it essential to give a brief .summary of the salient features of the evidence gleaned from the statement of facts in the record.
On Saturday, September 26, 1884, appellant Brumley shot and killed one Isaac McAdams, in the road immediately in front of his, Brumley’s, residence. A few days before the homicide some one had shot and killed a horse belonging to appellant, and one Williams, who was a nephew of the deceased, had been arrested under a complaint charging him with this offense. Williams’s case was tried before a justice of the peace, at Caddo Mills, on Thursday, two days before the homicide.
The McAdams family were very much incensed at the arrest of Williams, their relative, and one of the older members of the family had declared that, on the day of the court, a crowd would go to Caddo Mills “ and raise hell.” After the trial of Williams, seven members of the McAdams family commenced the difficulty with one Buce, a step-son of the appellant, charging him with having sworn a lie on the trial of Williams. Then the entire party began a series of abuse of the officers of court, and of Brumley, ■ this appellant. They were very boisterous, threatening, and profane. Brumley at the time was in a store house, but could hear what was transpiring. A constable commanded the peace and endeavored to quell the disturbance, and was threat[237]*237ened with personal violence by Isaac McAdams, the deceased. Finally the magistrate restored quiet. Isaac McAdams, the deceased, declared that peace was not what he wanted; that he wanted war or blood; and he notified the justice that he must not issue any more writs, not even a subpoena, against any of his kith or kin. He threatened Brumley’s life in Brumley’s hearing, saying that he would cut his heart out, chew it up, and spit it out with as much pleasure as he could take a drink of water.
After quiet was restored, and the McAdams party had left, Brumley 'went to the justice of the peace, and proffered to make an affidavit against Isaac McAdams, so as to have him put under a bond to keep the peace; but the justice, fearing more trouble, dissuaded him from it. It is shown by the evidence that McAdams, the deceased, was a violent and dangerous man, and one likely to execute any threats made by him; a muscular man, weighing from one hundred and sixty to one hundred and seventy pounds. Brumley was a very small, weak man, from .one.hundred to one hundred and ten pounds weight, crippled in one of his hands, and nearly blind.
On the morning of the homicide Brumley, the defendant, was sitting on his yard fence, a few feet in front of the door of his house. Two men; Grade Smith and John Brem, were at his house, Smith in the yard near him, and Brem in the door. A man was seen riding up through the pasture. Smith told Brumley the man was Isaac McAdams. Up to this point there is no conflict in the evidence. We will let each man tell what he Sciw: o
Newton Watson, a transient man, said Brumley got off the fence before the deceased got up to him, and some words he did not hear were spoken, when Brumley said: “I understand you say I killed my own horse?” To which deceased replied: “If I said it once, I say it again,” when Brumley replied: “You are a horse thief,” and witness ran off.
John Brem, a witness for the State, said the first words he heard was McAdams’s declaration to Brumley: “You are a damned horse thief, and I believe you killed your own horse,” to which Brumley replied: “Can you prove it?” when deceased said: “J don’t know as I can, but you are a God damned thief,” and started to throw himself off his horse, and appellant at the same time drew his pistol and snapped it, and after both dodged, as McAdams approached Brumley, he fired the fatal shot while [238]*238deceased was so close to him that his. head fell at appellant’s feet.
Smith alone saw the whole of the difficulty. He tells us that as McAdams rode up, Brumley said: “ Good morning,” to which an inaudible reply was made, when appellant said: “ I understand you said I killed my own horse,” to which deceased replied: “Yes, I did, and you are a God damned thief.” Brumley replied: “I want you to take that back. Can you prove it?” And deceased said: “ You are a God damned thief and a murderer, * * * and I am none too good to kill you,” when" appellant drew his pistol just as deceased was getting off his horse on the opposite side of appellant, and appellant snapped but the pistol failed to fire, and as deceased came around the horse towards Brumley, he fired, when deceased was so close that his head fell at appellant’s feet. These are the material facts as they were made to appear at the trial.
Amongst the errors complained of, two, as shown by bills of exception, relate to the admission of evidence over the objection-of defendant, and are in regard to the same subject matter. This evidence was offered by the State, manifestly with a view of showing that the deceased, Isaac McAdams, in passing by defendant’s house on the morning of the homicide did not do so for the purpose of encountering defendant, or of provoking a difficulty with him.
In substance, the testimony objected to, and the objections to the same, are sufficiently stated in appellant’s brief, as follows:
“Yancey McAdams testified that, on the morning of the killing, the deceased was at his (witness’s) house, and they had some conversation about hauling hay they had previously cut, and they needed another wagon, and deceased was on his way to borrow a wagon from Robert McAdams. This was objected to. 1. Because it was immaterial. 2. Defendant had no notice of the purpose of deceased in coming to or by his house. 3. The evidence was calculated to militate against the accused and impress upon the jury that deceased was there for a lawful purpose, and not to execute the threats previously made. 4. It not being shown that Brumley knew the motive of deceased in riding towards him so soon after the threats were made, Brumley could act on reasonable appearances of danger; whereas, the evidence tended to show no danger existed, and in the minds of the jury destroy Brumley’s legal right of self defense. 5. The evidence • was hearsay in its 'character. James McAdams, a [239]*239State’s witness, was asked what deceased went to Brumley’s for, which was objected to on the same ground. He answered, ‘to borrow a wagon from Robert McAdams. ’ As already stated, the proof showed that Isaac McAdams had threaténed the life of Brumley; that he was a violent and dangerous man, and reasonably calculated to execute a threat, and that he went into the pasture and rode up directly in front of appellant’s house, where the tragedy took place.”
Was this evidence admissible? It is a general rule that, “in cases where it is material to inquire into the demeanor, conduct, and mental feelings of an individual, at a particular period, the declarations made and the expressions used at the period in question are in their nature original evidence * * * * Verbal and written declarations are often said to be admissible as a part of the res gestee. As such they are most properly admissible when they accompany some act, the nature, object, or motives of which are the subject of inquiry. In such cases, words are receivable as original evidence, on the ground that what is said at the time affords legitimate, if not the best means of ascertaining the character of such equivocal acts as admit of explanation from those indications of the .mind which language affords.” (1 Phil, on Ev., Cowan & Hill’s Notes, 3 ed., 1859, pp. 181-185.)
In a case presenting an analogous question to the one we are considering (The People v. Williams, 3 Parker’s Crim. Rep., 84), the Court of Appeals of Mew York held as follows: “ When it is necessary, on the trial of a cause, to inquire into the nature of a particular act, or the intentions of the person who did the act, proof of what the person said at the time of doing it, is admissible in evidence as part of the res gestee, for the purpose of showing its true character; but, to render such declarations competent, the act with which it is connected should be pertinent to the issue; for when the act is in its own nature irrelevant, and when the declaration is, per se, incompetent, the union of the two will not render the declaration admissible.” (Citing Wright v. Doe, 7 Adolph & Ellis, 289.)
' Where, on the trial of A. W. for the murder of his wife by poison, it appears that he lived apart from his wife and in the same town, and that his wife left her residence on Saturday .evening before her death, and returned home at five o’clock the next morning, sick, and continued ill till she died, her symptoms being the same as in cases of poisoning: Held, “That it was [240]*240not competent to prove what the deceased said when she left home on Saturday evening as to where she was going; and where such evidence was admitted, and it was proved that she said she was going with clothing for her husband, and the prisoner was convicted, it was held erroneous, and the judgment was reversed.”
In the early case of The State v. Zellers (2 Halst., H. J., Rep.), where the State offered to prove a conversation between the deceased and a witness, in which the deceased told the witness what his intentions were in going to the place where the homicide was committed, on objection by the defendant, the court held that the conversation could not be proved; that the question to be determined was, what excited the prisoner to the commission of the act? Everything that could operate upon his mind may be proved, but you can not give in evidence the conversation or acts of the deceased which never came to the knowledge of Zellers, for they could have no influence upon his mind, and could neither extenuate nor justify the crime.
It is a rule, not only statutory, but of almost universal acceptation, that a party may act upon reasonable appearances of danger, and that whether danger is apparent, or not, is always to be determined from the defendant’s standpoint. . (Penal Code, Arts. 570, 574; Whart. on Horn., 2 ed., sec. 4931; Whart. Crim. L., sec. 488; The State v. Cain, 20 W. Va., 679; Haney v. Conner, Ky., 5 Crim. L. Mag., 47; Jordan v. The State, 11 Texas Ct. App., 435; King v. The State, 13 Texas Ct. App., 277; Gilly v. The State 15 Texas, Ct. App., 287; Jones v. The State, 17 Texas Ct. App., 603.)
How, in this case • it was immaterial, so far as defendant’s rights were concerned, what were the motives of the deceased McAdams in. coming to the house of the defendant on the fatal morning of the homicide; that is, it is clearly immaterial whether his mission was a peaceable one, to-wit: going to his brother’s for the purpose of getting a wagon. Such motives and intentions could not possibly have affected defendant’s conduct, because the evidence shows that they had never been communicated to him. and that he was wholly ignorant of them. He should not be held in any way bound by such undisclosed motives and intentions, and, so far as he was concerned, they could not throw any light upon the immediate transaction, to-wit: the homicide. In our opinion the evidence was inadmissible.
Other errors are complained of, but they may not arise upon another trial, and we will not discuss them.
[241]*241Opinion delivered April 24, 1886.
For the error in admitting the testimony above discussed, the judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.