MORROW, Presiding Judge.
The offense is murder; punishment fixed at confinement in the penitentiary for life.
Fred Bollinger lived alone in a house on his farm. One morning he was found suffering from a gunshot wound in his breast. Near the bed was a .38 calibre pistol from which two shots had been recently fired. The wound was one inflicted by a bullet of that calibre. There was also a bullet hole through the roof of the dwelling. Touching the presence of powder burns upon the apparel worn by the deceased the evidence is conflicting. The first person to arrive was Shaw, and later, Jones. The wound was near the left nipple and ranged outward and upward in the same side of the body. The bullet was located under the skin below the left shoulder.
The principal witness for the State was Fred Fuston, who testified in substance that late at night, by appointment, he met the appellant and one Mallett; that the appellant had previously threatened to kill the witness unless he killed Bollinger. At the meeting mentioned the witness refused to kill Bollinger, and the appellant, urging him, said, “You take that gun and go kill Fred. * * * He has not got no chance as we have got his gun.” Appellant said that he had Bollinger’s gun; that he had gotten it on Sunday evening; that Bollinger could not do anything. After Fuston declined, appellant said that he would kill Bollinger. Appellant then took the gun and went in the direction of Bollinger’s house. About five minutes later the report of two shots was heard. The distance separating the parties was about 40 to 50 steps. Soon after the shots were fired, appellant appeared and said that he had shot Bollinger. The truth of Fusion’s testimony was controverted by circumstances. A more comprehensive statement of the evidence is embraced in the report of the former appeal in 106 Tex. Cr. R. 321, also in the second appeal of the case, in 6 S. W. (2d) 119.
The evidence upon the present appeal deviates in some particulars from that in the former appeals, not, however, to a degree rendering necessary further recitals than appear above and in the discussion following.
Two State’s witnesses, Shaw and Jones, having an appointment with Bollinger, went to his home on the morning of the 10th of November. Shaw arrived a few moments in advance of Jones. Later, a justice of the peace, the sheriff, a constable and deputy sheriff arrived, also a doctor. About two or two and one-half hours after the arrival of Shaw, Bollinger was taken to a hospital. The transactions and conversations which are made the subject of the bills of exceptions discussed herein all took place apparently an hour or more prior to the removal of Bollinger to the hospital.
Jones testified that Bollinger was lying wounded upon his bed as above described. He was bleeding and. suffering at the time. The witness discovered a .38 calibre pistol lying upon the floor upon a pair of old trousers. The pistol was picked up and examined. The shells therein were also examined. He gave testimony as to their condition and said that he found two empty shells and three loaded ones; that some of the loaded ones appeared to have been snapped. Jones delivered the pistol to either Urquhart, the sheriff, or the justice of the peace. Upon suggesting that a doctor be called, Bollinger said that it was useless as he could last but a little bit; that he could not last long and that it was no use. The deceased delivered his money to the witness Jones and asked that the money possessed by him be divided among certain persons whom he named.
There is a bill of exception complaining of the action of the court in excluding the declaration of the deceased. Urquhart, the sheriff, testified in substance that he found a pistol on the floor on a pair of pants about two feet from the side of the bed upon which Bollinger was lying; that he picked up the pistol, examined it, and by experiment determined that it had been recently fired. He noticed that there were shells in it, two of which were empty and two that had not been fired. The shells were of a .38 calibre. He said, “I todk charge of the gun and showed it to Mr. Bollinger.” He also testified that there was taken from the body of the deceased a .38 calibre pistol bullet. This was exhibited to the jury, as were the shells and the pistol upon the identification of Urquhart. On cross-examination the sheriff stated that at the time he picked up the pistol, examined it and showed it to Bollinger, he had a conversation with Bollinger with reference to the pistol. Quoting him, he said: “I had a conversation with him as to whose pistol it was.” The appellant sought to elicit from the witness the statement or declaration which was made by the deceased at the time the pistol was exhibited to him. This, upon objection of the State, was excluded
upon the ground that it was not shown to have been a dying declaration or res gestae. The witness would have testified that he was told by Bollinger that the pistol belonged to him; that it ought to have been under his pillow as he put it there the night before. As shown by other bills of exception the appellant sought to make like proof by the witnesses Gibson and Chamberlain, that is to say, proof that they saw Urquhart show the pistol to Bollinger and heard the conversation. Each of said witnesses would have testified to the remark made by the deceased in substance as would have Urquhart; that is to say, that Bollinger said that the pistol belonged to him; that he had put it under his pillow on the previous night.
The qualification of the bill complaining of the rejection of the testimony of Urquhart to the declaration of Bollinger is in substance that the record shows that Shaw was the first person to reach the deceased; that some conversation took place; that Urquhart’s arrival was subsequent to that of Shaw. The qualification refers to the record. From the record it appears that when Shaw entered the house and found Bollinger in bed, he remarked that he was sleeping late; that he must have been out late. Bollinger replied, “I am shot.” Shaw specifically said that no other words passed, at that time, and further said that in a few moments Jones entered, and a short time thereafter Urquhart, the sheriff, and Chamberlain came in together. The witness said that he did not see the pistol until Jones came.
The record has been examined with the results heretofore stated in substance and makes it clear that Shaw (the first witness) did not see the pistol until after Jones’ arrival and that neither Shaw nor Jones nor any other witness did anything with the reference to the pistol until after the arrival of Urquhart, the sheriff. Touching the admissibility of the declaration under the so-called rule of res gestae, it may be said that the rule is much broader and far more elastic than as originally in the Common Law. See Wharton’s Criminal Evidence, (3rd Ed.) Vol. 1, p. 490, sec. 262; Jones v. State, 11 S. W. (2d) 798. The formulation of a fixed standard governing the receipt or rejection of testimony, under the rule of res gestae as it exists in this state, is extremely difficult, if not impossible. It is well understood, however, as is stated in Nami’s case, 97 Tex. Cr. R. 531, that “many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far
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MORROW, Presiding Judge.
The offense is murder; punishment fixed at confinement in the penitentiary for life.
Fred Bollinger lived alone in a house on his farm. One morning he was found suffering from a gunshot wound in his breast. Near the bed was a .38 calibre pistol from which two shots had been recently fired. The wound was one inflicted by a bullet of that calibre. There was also a bullet hole through the roof of the dwelling. Touching the presence of powder burns upon the apparel worn by the deceased the evidence is conflicting. The first person to arrive was Shaw, and later, Jones. The wound was near the left nipple and ranged outward and upward in the same side of the body. The bullet was located under the skin below the left shoulder.
The principal witness for the State was Fred Fuston, who testified in substance that late at night, by appointment, he met the appellant and one Mallett; that the appellant had previously threatened to kill the witness unless he killed Bollinger. At the meeting mentioned the witness refused to kill Bollinger, and the appellant, urging him, said, “You take that gun and go kill Fred. * * * He has not got no chance as we have got his gun.” Appellant said that he had Bollinger’s gun; that he had gotten it on Sunday evening; that Bollinger could not do anything. After Fuston declined, appellant said that he would kill Bollinger. Appellant then took the gun and went in the direction of Bollinger’s house. About five minutes later the report of two shots was heard. The distance separating the parties was about 40 to 50 steps. Soon after the shots were fired, appellant appeared and said that he had shot Bollinger. The truth of Fusion’s testimony was controverted by circumstances. A more comprehensive statement of the evidence is embraced in the report of the former appeal in 106 Tex. Cr. R. 321, also in the second appeal of the case, in 6 S. W. (2d) 119.
The evidence upon the present appeal deviates in some particulars from that in the former appeals, not, however, to a degree rendering necessary further recitals than appear above and in the discussion following.
Two State’s witnesses, Shaw and Jones, having an appointment with Bollinger, went to his home on the morning of the 10th of November. Shaw arrived a few moments in advance of Jones. Later, a justice of the peace, the sheriff, a constable and deputy sheriff arrived, also a doctor. About two or two and one-half hours after the arrival of Shaw, Bollinger was taken to a hospital. The transactions and conversations which are made the subject of the bills of exceptions discussed herein all took place apparently an hour or more prior to the removal of Bollinger to the hospital.
Jones testified that Bollinger was lying wounded upon his bed as above described. He was bleeding and. suffering at the time. The witness discovered a .38 calibre pistol lying upon the floor upon a pair of old trousers. The pistol was picked up and examined. The shells therein were also examined. He gave testimony as to their condition and said that he found two empty shells and three loaded ones; that some of the loaded ones appeared to have been snapped. Jones delivered the pistol to either Urquhart, the sheriff, or the justice of the peace. Upon suggesting that a doctor be called, Bollinger said that it was useless as he could last but a little bit; that he could not last long and that it was no use. The deceased delivered his money to the witness Jones and asked that the money possessed by him be divided among certain persons whom he named.
There is a bill of exception complaining of the action of the court in excluding the declaration of the deceased. Urquhart, the sheriff, testified in substance that he found a pistol on the floor on a pair of pants about two feet from the side of the bed upon which Bollinger was lying; that he picked up the pistol, examined it, and by experiment determined that it had been recently fired. He noticed that there were shells in it, two of which were empty and two that had not been fired. The shells were of a .38 calibre. He said, “I todk charge of the gun and showed it to Mr. Bollinger.” He also testified that there was taken from the body of the deceased a .38 calibre pistol bullet. This was exhibited to the jury, as were the shells and the pistol upon the identification of Urquhart. On cross-examination the sheriff stated that at the time he picked up the pistol, examined it and showed it to Bollinger, he had a conversation with Bollinger with reference to the pistol. Quoting him, he said: “I had a conversation with him as to whose pistol it was.” The appellant sought to elicit from the witness the statement or declaration which was made by the deceased at the time the pistol was exhibited to him. This, upon objection of the State, was excluded
upon the ground that it was not shown to have been a dying declaration or res gestae. The witness would have testified that he was told by Bollinger that the pistol belonged to him; that it ought to have been under his pillow as he put it there the night before. As shown by other bills of exception the appellant sought to make like proof by the witnesses Gibson and Chamberlain, that is to say, proof that they saw Urquhart show the pistol to Bollinger and heard the conversation. Each of said witnesses would have testified to the remark made by the deceased in substance as would have Urquhart; that is to say, that Bollinger said that the pistol belonged to him; that he had put it under his pillow on the previous night.
The qualification of the bill complaining of the rejection of the testimony of Urquhart to the declaration of Bollinger is in substance that the record shows that Shaw was the first person to reach the deceased; that some conversation took place; that Urquhart’s arrival was subsequent to that of Shaw. The qualification refers to the record. From the record it appears that when Shaw entered the house and found Bollinger in bed, he remarked that he was sleeping late; that he must have been out late. Bollinger replied, “I am shot.” Shaw specifically said that no other words passed, at that time, and further said that in a few moments Jones entered, and a short time thereafter Urquhart, the sheriff, and Chamberlain came in together. The witness said that he did not see the pistol until Jones came.
The record has been examined with the results heretofore stated in substance and makes it clear that Shaw (the first witness) did not see the pistol until after Jones’ arrival and that neither Shaw nor Jones nor any other witness did anything with the reference to the pistol until after the arrival of Urquhart, the sheriff. Touching the admissibility of the declaration under the so-called rule of res gestae, it may be said that the rule is much broader and far more elastic than as originally in the Common Law. See Wharton’s Criminal Evidence, (3rd Ed.) Vol. 1, p. 490, sec. 262; Jones v. State, 11 S. W. (2d) 798. The formulation of a fixed standard governing the receipt or rejection of testimony, under the rule of res gestae as it exists in this state, is extremely difficult, if not impossible. It is well understood, however, as is stated in Nami’s case, 97 Tex. Cr. R. 531, that “many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far
enough to preclude premeditation and in cases of this kind we have declined to be limited to any specific time,” citing Tooney v. State, 8 Tex. Cr. App. 459; Fulcher v. State, 28 Tex. Cr. App. 471, and numerous other decisions.
In the present instance, according to the undisputed evidence, it is stated in substance that the deceased said that medical aid was useless; that he would not last long; that he wanted his money delivered to persons which he named. It was shown that the deceased was suffering from a serious wound and from shock, was in pain and was bleeding. His condition was serious to a degree that physicians advised that he be removed to a hospital, where he subsequently died from the effects of the wound. If, under the circumstances disclosed by the record, the deceased had stated facts leading to'the conclusion that the pistol belonged to the appellant, it is believed that there are many precedents (some of which have been listed above) which would have justified the court in receiving the declaration in evidence against the opposition of one accused on trial. As shown in the beginning of this opinion, the State introduced evidence from the witness Fusion to the effect that a few moments before the firing of the shots as claimed by him which wounded the deceased, the appellant, while endeavoring to get Fusion to kill the deceased, stated to Fusion in substance that the pistol of the deceased was in the hands of the appellant, as he had gotten it on a Sunday previous. The State further proved by Fusion that after he refused to take the pistol proffered by the appellant and kill the deceased, the appellant then took the pistol and went to Bollinger’s house with it. It is obvious from this testimony that it was intended to show that the appellant at some time before had disarmed the deceased, gotten possession of his pistol and used it in shooting the deceased. The proffered testimony was in conflict with this theory advanced by the State through the testimony of the accomplice witness and went to show (as the declaration would have disclosed) that at the very time the State’s witness claimed that the appellant was in possession of the pistol of the deceased (or claimed to be), it was under the pillow on the bed upon which the deceased was sleeping, having been placed there by him. It is hard to conceive that any rule of evidence devised for the purpose of eliciting the truth and aiding in the administration of justice, would reject the declaration of the deceased under the circumstances disclosed by the record. If it should be held that the declaration under consideration was not by the record shown to come within the rule of res
gestae, there are other recognized exceptions to the rule excluding hearsay declarations which are worthy of note. Among these is the rule recognized by all courts and text-writers giving one against whom a part of an utterance or transaction is introduced the privilege of introducing the remainder. See Wigmore on Ev., 2nd Ed., Vol. 4, Sec. 2113; also Vol. 3, sec. 1786. This principle has found expression, and to some extent extension, in our own statutory law, as manifested by Art. 728, C. C. P., 1925, which reads as follows:
“When part of an act, declaration, or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given.
When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”
To the mind of the writer, the
act
of the witness in showing the pistol to Bollinger, and the statement of Bollinger of
“something about who owned the pistol,”
all of which was put in evidence, rendered competent proof by the accused of the words used by Bollinger, namely, “that the pistol belonged to him, and was placed by him under the pillow on his bed on the night on which he was shot.” The materiality of the testimony, as above explained, is not open to question. In denying to the accused the privilege of making the proof, the law set out in the statute (Art. 728) was transgressed and the rights of the accused abridged to his injury. The announcements in the precedents, as well as the terms of the statute itself,, lead us to conclude that in refusing to receive in' evidence the testimony of Urquhart, the sheriff, repeating the words of the deceased, Bollinger, explanatory of the presence of the pistol in his domicile and near his bed, the learned judge who presided at the trial of the accused overlooked or misinterpreted the effect of the statute in question, and that the error in so doing is substantial in that it deprived the accused of an item of evidence of vital importance in meeting and counteracting the theory of the State. Some of the precedents to which reference is made are Green v. State, 17 Tex. Cr. App. 395; Bonnard v. State, 25 Tex. Cr. App. 196; Lawler v. State, 9 S. W. (2d) 262.
Because of the rejection of the testimony mentioned, we are constrained to order the reversal of the judgment of conviction and to remand the cause for another trial.
Reversed and remanded.