White, Presiding Judge.
The appellant was convicted in the court below of murder in the first degree, with a life term penalty assessed in the penitentiary.
The party killed was one William M. Russell, and the record shows that the fatal shooting took place on the night of December 31, 1885, after midnight, between twelve and oneWclock. The shooting took place at a brothel kept by one Lilly Gibson, or just after the deceased had started to leave, and was leaving said house of prostitution. Lilly Gibson, the keeper of the [525]*525bagnio, was the wife of this appellant, and appellant had rooms and lived at and slept in said house.
Appellant was in his room in said house, when an altercation occurred between the deceased and Lilly Gibson, about the payment by deceased for a bottle of beer. Deceased was intoxicated, and his friend attempted to settle the altercation between him and the woman Gibson, and had succeeded so far as to get him started away from the house to his own place of abode, and they had gotten outside of the gate of the premises when the woman Gibson called to her husband, the defendant, “ to get his pistol and bring it there,” and as he emerged upon the porch where she was standing, she told him several times, “to fire.” He immediately fired three shots, one of which took effect, and pro duced the death of the deceased.
It is claimed that during the wordy altercation between the parties above mentioned, deceased had used insulting language towards the woman Gibson, the wife of appellant, and that he had called her “a damned old whore.”
This is a brief, succinct statement of the material facts shown by the record. There are no independent bills of exception in the record, but several were reserved during the trial, and are shown in the statement of facts, to the admission of the testimony of the witnesses, as follows:
1. Objection was made by defendant to testimony as to acts and declarations of Lilly Gibson, upon the ground that she was the wife of defendant, and therefore her acts and declarations could not be used against him.
3. Objection was made by defendant to admitted testimony of the reputation of the house kept by Lilly Gibson as a house of prostitution, and that the inmates thereof were prostitutes.
3. Objection was made to the admission of the dying declarations of the deceased, Russell.
With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of Russell, they were admissible as verbal acts and were cléarly parts of the res gestee, and consequently did not come within the rule announced in Article 735, Code of Criminal Procedure, which prohibits a husband and wife from testifying against each other in a criminal prosecution.
Again, the evidence as developed in this case shows that the husband and wife acted together in the commission of the offense, and are both principals, and the rule is uniform that the [526]*526declarations of one of the- parties principal made' at the time, during the progress and in furtherance of the common design, are admisible in evidence and binding upon the other co-conspirators. (Cox v. The State, 8 Texas Ct. App., 256; Loggins v. The State, Id., 434.)
Mr. Wharton, in his work on Evidence, section 252, says: “It is in any view clear that declarations which are the immediate accompaniments of an act are admissible as part of the res gestee'’ Again, in section 263, he says that “the wife’s declarations, forming a part of the res gestee, are admissible against the husband.”
This doctrine is maintained in civil cases at common law. (Johnson v. Sherwine, 2 Gray, 374; Walton v. Green, 1 C. and P., 621; Gilchrist v. Bale, 8 Watts, 355; Aveson v. Lord Kenard, 6 East, 188; Thompson and wife v. Freeman, 1 Skinner, 420.) At common law, the rule which in civil cases excluded the husband and wife from testifying against each other was the same as that which is announced by our statutes with-regard to criminal cases. There is no law of this State which governs or regulates the admission of declarations of the wife affecting the husband, when they constitute a part of the res gestee, and there being no specific rules prescribed by statute, other rules of the code relegate us to the common law for the rules which are to govern. (Code Crim. Proc., Arts. 27 and 725.)
We shall therefore adhere to the common law rule as expressed in the authorities above cited, and hold the declarations of the wife admissible against the husband as a part of the res gestee; for it is indispensable to a correct understanding of every transaction that every act attending it, verbal as well as physical, by whomsoever it may be committed, be placed before the court for its enlightenment. This rule as to res gestee overrides all other rules known to the law governing the admissibility of testimony. The court below, then, did not err in so admitting the declarations of Lilly Gibson as complained about in this case.
We are also of opinion that the objection of appellant to the admission of the dying declarations of the deceased, Bussell, as made to Owen I. Cook and Jesse Bennett, are equally untenable. The evidence clearly shows that the deceased was conscious of approaching death when he made the declarations, and the only objection urged to them is upon this ground. The deceased said he was going to die, and wanted a priest. He said this continually, according to Bennett’s testimony. To Owen I. Cook he [527]*527stated that it'was no use, he was going to die; thus showing clearly that the predominant idea in his mind, the all absorbing topic with him, was approaching dissolution. This was sufficient proof to establish the predicate for their admission, and the court did not err in so admitting them. (Hunnicutt v. The State, 18 Texas Ct. App., 498; Id., 20 Texas Ct. App., 632; Temple v. The State, 15 Texas Ct. App., 304.)
. As to the third exception, as stated in the bill, the language is: “The defendant excepted to the statement of witness that the house kept by Lilly Gibson was a house of prostitution, and that the occupants thereof are prostitutes.”
The rule is well established that the fact of the character of a house as a disorderly house, and that it was kept for the purpose of prostitution, and the character of the occupants thereof, may be proved by general reputation. (Morris v. The State, 38 Texas, 603; Sylvester v. The State, 42 Texas, 496; Allen v. The State, 15 Texas Ct. App., 320, and Benton v. The State, 16 Texas Ct. App., 156.) The evidence objected to was admissisible and the ruling complained of was not erroneous.
The charge of the court is very seriously objected to, and it is urgently insisted that the same was erroneous in several particulars mentioned in the motion for new trial and in the assignment of errors, and ably discussed in the brief of counsel for appellant; but there was no bill of exceptions reserved at the trial to the charge or any portion of the same, nor to the refusal of the court to give such of the special requested instructions as the court declined to give, or refused because substantially given in the general charge. Had certain portions of the charge been excepted to at the time the charge was given, then there might have been a very serious question as to whether some of the errors pointed out would not have necessitated a reversal of the judgment. (Niland v. The State, 19 Texas Ct.
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White, Presiding Judge.
The appellant was convicted in the court below of murder in the first degree, with a life term penalty assessed in the penitentiary.
The party killed was one William M. Russell, and the record shows that the fatal shooting took place on the night of December 31, 1885, after midnight, between twelve and oneWclock. The shooting took place at a brothel kept by one Lilly Gibson, or just after the deceased had started to leave, and was leaving said house of prostitution. Lilly Gibson, the keeper of the [525]*525bagnio, was the wife of this appellant, and appellant had rooms and lived at and slept in said house.
Appellant was in his room in said house, when an altercation occurred between the deceased and Lilly Gibson, about the payment by deceased for a bottle of beer. Deceased was intoxicated, and his friend attempted to settle the altercation between him and the woman Gibson, and had succeeded so far as to get him started away from the house to his own place of abode, and they had gotten outside of the gate of the premises when the woman Gibson called to her husband, the defendant, “ to get his pistol and bring it there,” and as he emerged upon the porch where she was standing, she told him several times, “to fire.” He immediately fired three shots, one of which took effect, and pro duced the death of the deceased.
It is claimed that during the wordy altercation between the parties above mentioned, deceased had used insulting language towards the woman Gibson, the wife of appellant, and that he had called her “a damned old whore.”
This is a brief, succinct statement of the material facts shown by the record. There are no independent bills of exception in the record, but several were reserved during the trial, and are shown in the statement of facts, to the admission of the testimony of the witnesses, as follows:
1. Objection was made by defendant to testimony as to acts and declarations of Lilly Gibson, upon the ground that she was the wife of defendant, and therefore her acts and declarations could not be used against him.
3. Objection was made by defendant to admitted testimony of the reputation of the house kept by Lilly Gibson as a house of prostitution, and that the inmates thereof were prostitutes.
3. Objection was made to the admission of the dying declarations of the deceased, Russell.
With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of Russell, they were admissible as verbal acts and were cléarly parts of the res gestee, and consequently did not come within the rule announced in Article 735, Code of Criminal Procedure, which prohibits a husband and wife from testifying against each other in a criminal prosecution.
Again, the evidence as developed in this case shows that the husband and wife acted together in the commission of the offense, and are both principals, and the rule is uniform that the [526]*526declarations of one of the- parties principal made' at the time, during the progress and in furtherance of the common design, are admisible in evidence and binding upon the other co-conspirators. (Cox v. The State, 8 Texas Ct. App., 256; Loggins v. The State, Id., 434.)
Mr. Wharton, in his work on Evidence, section 252, says: “It is in any view clear that declarations which are the immediate accompaniments of an act are admissible as part of the res gestee'’ Again, in section 263, he says that “the wife’s declarations, forming a part of the res gestee, are admissible against the husband.”
This doctrine is maintained in civil cases at common law. (Johnson v. Sherwine, 2 Gray, 374; Walton v. Green, 1 C. and P., 621; Gilchrist v. Bale, 8 Watts, 355; Aveson v. Lord Kenard, 6 East, 188; Thompson and wife v. Freeman, 1 Skinner, 420.) At common law, the rule which in civil cases excluded the husband and wife from testifying against each other was the same as that which is announced by our statutes with-regard to criminal cases. There is no law of this State which governs or regulates the admission of declarations of the wife affecting the husband, when they constitute a part of the res gestee, and there being no specific rules prescribed by statute, other rules of the code relegate us to the common law for the rules which are to govern. (Code Crim. Proc., Arts. 27 and 725.)
We shall therefore adhere to the common law rule as expressed in the authorities above cited, and hold the declarations of the wife admissible against the husband as a part of the res gestee; for it is indispensable to a correct understanding of every transaction that every act attending it, verbal as well as physical, by whomsoever it may be committed, be placed before the court for its enlightenment. This rule as to res gestee overrides all other rules known to the law governing the admissibility of testimony. The court below, then, did not err in so admitting the declarations of Lilly Gibson as complained about in this case.
We are also of opinion that the objection of appellant to the admission of the dying declarations of the deceased, Bussell, as made to Owen I. Cook and Jesse Bennett, are equally untenable. The evidence clearly shows that the deceased was conscious of approaching death when he made the declarations, and the only objection urged to them is upon this ground. The deceased said he was going to die, and wanted a priest. He said this continually, according to Bennett’s testimony. To Owen I. Cook he [527]*527stated that it'was no use, he was going to die; thus showing clearly that the predominant idea in his mind, the all absorbing topic with him, was approaching dissolution. This was sufficient proof to establish the predicate for their admission, and the court did not err in so admitting them. (Hunnicutt v. The State, 18 Texas Ct. App., 498; Id., 20 Texas Ct. App., 632; Temple v. The State, 15 Texas Ct. App., 304.)
. As to the third exception, as stated in the bill, the language is: “The defendant excepted to the statement of witness that the house kept by Lilly Gibson was a house of prostitution, and that the occupants thereof are prostitutes.”
The rule is well established that the fact of the character of a house as a disorderly house, and that it was kept for the purpose of prostitution, and the character of the occupants thereof, may be proved by general reputation. (Morris v. The State, 38 Texas, 603; Sylvester v. The State, 42 Texas, 496; Allen v. The State, 15 Texas Ct. App., 320, and Benton v. The State, 16 Texas Ct. App., 156.) The evidence objected to was admissisible and the ruling complained of was not erroneous.
The charge of the court is very seriously objected to, and it is urgently insisted that the same was erroneous in several particulars mentioned in the motion for new trial and in the assignment of errors, and ably discussed in the brief of counsel for appellant; but there was no bill of exceptions reserved at the trial to the charge or any portion of the same, nor to the refusal of the court to give such of the special requested instructions as the court declined to give, or refused because substantially given in the general charge. Had certain portions of the charge been excepted to at the time the charge was given, then there might have been a very serious question as to whether some of the errors pointed out would not have necessitated a reversal of the judgment. (Niland v. The State, 19 Texas Ct. App., 167, and authorities cited; Code Crim. Proc., Arts. 685 and 686.)
It is not within the discretion of this court to consider the effect upon the jury of an erroneous charge of the court, if the same was promptly excepted to at the time the same was given. In such a case the conviction must be set aside however immaterial the error may have been. (Clanton v. The State, 20 Texas Ct. App., 616; Bravo v. The State, Id., 188.)
Where a charge is not excepted to at the trial, but the same is objected to for the first time on the motion for a new trial, or in this court on appeal, then the question is whether or not such [528]*528charge was calculated to injure the rights of defendant, and, unless such is made to appear, this court will not revise the error. (Code Crim. Proc., Art 777; Bishop v. The State, 43 Texas, 390; Mace v. The State, 9 Texas Ct. App., 110; Henry v. The State, Id., 359; Gardiner v. The State, 11 Texas Ct. App., 265; Elam v. The State, 16 Texas Ct. App., 34; Mendiola v. The State, 18 Texas Ct. App., 463; Lewis v. The State, Id., 401.)
In addition to the general charge, which embraced murder in the first and second degrees, and manslaughter, six special requested instructions for defendant were also given in charge to the jury.
A portion of paragraph 6 of the general charge is specially complained of in the able brief of counsel for appellant. The words specially objected to are embraced in the following extract. Speaking of the indicia of express malice, the learned judge said: “These external circumstances indicating the design may transpire at the very moment of the killing as well as before that time; for, although the killing may have been upon an unexpected meeting, it may have been attended with such absence of passion and such a wanton, cruel, calculating method, as will afford ample evidence to establish in your minds the conviction that the killing was the result of a sedate, deliberate, and well formed design then and there to take the life of the deceased. The length of time that intervenes between the design so formed and its execution is immaterial, for the reason that an apparently instantaneous act may be accompanied with such circumstances and such want of provocation as to leave no doubt of its being the result of premeditation.” There can be no question but that the charge announced a sound, abstract proposition of law. (McCoy v. The State, 25 Texas, 33.)
Two objections, however, are claimed against it, to wit: First. That it trenches upon the rule which forbids the court to charge upon the weight of evidence; and, secondly, because there was no evidence to call for, justify or warrant such a charge. Had exception been taken to the charge at the time it was given it might have presented a nice question for decision. But, even if we should concede that it was erroneous, there being no exception, we can not see, when viewed in the light of the evidence, that it was calculated seriously to affect and injure the rights of the defendant.
The same may be said with reference to other portions of the charge complained of, to wit, the charge upon manslaughter, in [529]*529so far as it was based upon insulting words and conduct of deceased towards the wife of defendant, the objection thereto being that it was not sufficiently full and explicit, as required by the Code, and presented a phase of the law not applicable to the facts in the case. (Niland’s case, 19 Texas Ct. App., 166.)
Opinion delivered at Austin, June 23, 1886.
There is not a particle of testimony affirmatively appearing in the record which shows that defendant either heard or was informed of the insulting words which had been used by deceased towards his wife. But even if such had been the case we can not say, under the peculiar circumstances developed in the record, that the charge would have been such error as must necessarily have injured the rights of the defendant.
Again, it is said that the court failed to charge, as part of the law of self defense, that it was not necessary for the defendant to retreat before killing the assailant. In our opinion the record utterly fails to show the slightest shadow or pretense of self defense. The deceased was leaving the house, being taken off by his friend, was drunk—almost helplessly drunk—had gotten outside of the premises of the defendant and his wife, when defendant, instigated by his wife, fired upon and inflicted the fatal shot which killed him.
As to the sufficiency of the evidence, after most mature and repeated consideration of the record, we have been unable to arrive at any other conclusion than that the verdict and judgment are fully warranted and supported by the facts.
Having found no reversible error, the judgment is in all things affirmed.
Affirmed.