Hurt, Judge.
I. Upon the trial below, the State, over objection thereto by appellant, was permitted to introduce the following testimony: “When you reached the place where the shooting occurred, did any one say who had done the shooting?” "Yes; some one in the crowd pointed out Doctor Felder, and said: ‘ There is the man who did the shooting.’ I had just met Doctor Felder walking leisurely down the street.” Other testimony shows that the point at which appellant was met “was about the corner of Kopperl’s book store,” a building situated two doors from that in which the homicide was committed, and at the front of which the latter exclamation was made.
To the admission of this testimony a bill of exceptions was reserved, the exception basing itself upon the proposition that the evidence elicited was hearsay, and not res gestae.
“The question is,” says Mr. Wharton, “is the evidence offered that of the event speaking through participants, or that of observers speaking about the event? In the first case, what was thus said can be introduced without calling those who said it; in the second case, they must be called.” (Whart. Crim. Ev., sec. 262.) To the same effect is the following, from Mr. Bishop’s treatise on Criminal Procedure: “But, while the declarations [486]*486and outcries of persons neither on trial nor injured by the defendant’s acts may be admissible, to be so such persons must be otherwise connected with the transaction than as mere lookers-on, or the defendant must have been listening, and perhaps under circumstances requiring from him some response.” (1 Bish. Crim. Proc., sec. 1087.) Hearsay testimony, as a rule, is admissible to prove no fact which is in its nature susceptible of proof by witnesses testifying of their own knowledge. (Bradshaw v. The State, 10 Bush (Ky.), 576; Holt v. The State, 9 Texas Ct. App., 572; Means v. The State, 10 Id., 16; Shelton v. The State, 11 Id., 36; Roscoe’s Crim. Ev,, 22, 23.)
The circumstances of the Kentucky case of Bradshaw v. The State, supra, perhaps present as strong reasons for admitting the declarations of bystanders not connected with the transaction as can easily be conceived. In that case the theory of the prosecution was that defendant had shot deceased with a pistol, while on the platform of a railway coach, and thrown the body therefrom, the train at that time being in motion. In support of this theory persons inside the coach and immediately in rear of the platform were permitted to testify to the following exclamations made by persons standing on the platform, and in the immediate presence of the actors: “ Bradshaw has shot him!” “Bradshaw has pushed him off!” “Bradshaw has killed him!”
It will be noted that these exclamations were made upon the instant, and presumably in the hearing of the accused. There was in them certainly enough of spontaneity to make them of the res gestee; but they were held inadmissible upon the single ground that the persons making them were in no way connected with the main fact. Oases may and do arise in which the exclamations of bystanders, unconnected with the transaction, are admissible; of which the following furnishes an illustration: A and B are engaged in a combat. O, a bystander, cries out, “ B is trying to cut A with a knife!” In the further progress of the difficulty B receives injuries at the hands of A. This exclamation is admissible, for the obvious reason that it illustrates A’s intent, it being presumed that the apprehension of danger thereby created influenced his action, and this whether the information was in point of fact true or false.
Let us, however, reverse the conditions: Suppose after this exclamation, B, the party whom the exclamation represents as attempting to use the knife, inflicts an injury upon A, and is put upon trial. . Here the exclamation is not admissible to illus[487]*487trate the subsequent act, since this is better illustrated by a physical fact—the act itself—to the commission of which the witness must be called.
If this conclusion be not correct, and it be held that the exclamation was admissible, either to identify the accused, to show flight, or for any other purpose, it will scarcely be denied that the accused must have heard it, and have heard it under circumstances calling for a response, before he could be charged by silence. The burden of showing that the exclamation was heard will, in such case, rest upon the State; and in a majority of cases this can only be done by circumstances, such as contiguity and other opportunities for hearing. But, whether shown by proof or by circumstances, the proof that the exclamation was heard by the accused must be the predicate for the introduction of the exclamation itself.
Admitting, however, that the exclamation was heard by appellant, it becomes a question whether the circumstances required of him a response. According to the testimony, another person accompanied appellant at the time the declaration was made. Was this declaration or exclamation a sufficient identification of the appellant to call upon him for a response? Did the declaration individualize him as even the one of the two persons against whom the charge was made?
But it is insisted by the assistant attorney general that the appellant is shown to have understood himself to be the person charged, by the fact that when he was being arrested he shot at one of the policemen and snapped his pistol at another. Let us, for the argument, concede that he was being arrested for the shooting of Persons, the deceased, does it follow that this knowledge came to him from the declarations and acts of bystanders? May he not have first learned this from his being arrested? The arrest, and the acts and declarations of appellant while being arrested, are admissible; but this would not render competent the declarations of bystanders that appellant was the man who did the shooting. The statement of facts informs us that “some one in the crowd pointed out defendant, and said, ‘There is the man who did the shooting.’ ”
Lewis Morris testified that one or two men passed into the Iron Front saloon, that they were almost running, and somebody said “there goes the man that shot Persons,” pointing out appellant. The above is the substance of the testimony on this point. It will be noticed that there is no evidence that appellant saw [488]*488the party point him out. He may have heard the remark, but there is no evidence that it was he that was individualized; this was not brought home to him, and he may have understood it to apply to the other man who was near him.
As above stated, to entitle the State to introduce the declaration of a bystander, it must be clearly shown that the defendant understood himself to be accused, and the circumstances must be such as to require from him a response. How, the failure in this case is at the threshold, for it is not shown that appellant, at the time of the remark, knew that he was the man referred to, and hence the declaration can not be used for the purpose of charging him with that concurrence of circumstances which would call upon him for a response.
Again, if the declarations of a bystander could, under any circumstances, be used for such purpose, they could not be used for the purpose of proving that the accused did the act charged. This being the case, great circumspection should be used in admitting such declarations, even in cases in which there is strong testimony to show that the defendant knew himself to be charged, and the circumstances are such as to call for a response.
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Hurt, Judge.
I. Upon the trial below, the State, over objection thereto by appellant, was permitted to introduce the following testimony: “When you reached the place where the shooting occurred, did any one say who had done the shooting?” "Yes; some one in the crowd pointed out Doctor Felder, and said: ‘ There is the man who did the shooting.’ I had just met Doctor Felder walking leisurely down the street.” Other testimony shows that the point at which appellant was met “was about the corner of Kopperl’s book store,” a building situated two doors from that in which the homicide was committed, and at the front of which the latter exclamation was made.
To the admission of this testimony a bill of exceptions was reserved, the exception basing itself upon the proposition that the evidence elicited was hearsay, and not res gestae.
“The question is,” says Mr. Wharton, “is the evidence offered that of the event speaking through participants, or that of observers speaking about the event? In the first case, what was thus said can be introduced without calling those who said it; in the second case, they must be called.” (Whart. Crim. Ev., sec. 262.) To the same effect is the following, from Mr. Bishop’s treatise on Criminal Procedure: “But, while the declarations [486]*486and outcries of persons neither on trial nor injured by the defendant’s acts may be admissible, to be so such persons must be otherwise connected with the transaction than as mere lookers-on, or the defendant must have been listening, and perhaps under circumstances requiring from him some response.” (1 Bish. Crim. Proc., sec. 1087.) Hearsay testimony, as a rule, is admissible to prove no fact which is in its nature susceptible of proof by witnesses testifying of their own knowledge. (Bradshaw v. The State, 10 Bush (Ky.), 576; Holt v. The State, 9 Texas Ct. App., 572; Means v. The State, 10 Id., 16; Shelton v. The State, 11 Id., 36; Roscoe’s Crim. Ev,, 22, 23.)
The circumstances of the Kentucky case of Bradshaw v. The State, supra, perhaps present as strong reasons for admitting the declarations of bystanders not connected with the transaction as can easily be conceived. In that case the theory of the prosecution was that defendant had shot deceased with a pistol, while on the platform of a railway coach, and thrown the body therefrom, the train at that time being in motion. In support of this theory persons inside the coach and immediately in rear of the platform were permitted to testify to the following exclamations made by persons standing on the platform, and in the immediate presence of the actors: “ Bradshaw has shot him!” “Bradshaw has pushed him off!” “Bradshaw has killed him!”
It will be noted that these exclamations were made upon the instant, and presumably in the hearing of the accused. There was in them certainly enough of spontaneity to make them of the res gestee; but they were held inadmissible upon the single ground that the persons making them were in no way connected with the main fact. Oases may and do arise in which the exclamations of bystanders, unconnected with the transaction, are admissible; of which the following furnishes an illustration: A and B are engaged in a combat. O, a bystander, cries out, “ B is trying to cut A with a knife!” In the further progress of the difficulty B receives injuries at the hands of A. This exclamation is admissible, for the obvious reason that it illustrates A’s intent, it being presumed that the apprehension of danger thereby created influenced his action, and this whether the information was in point of fact true or false.
Let us, however, reverse the conditions: Suppose after this exclamation, B, the party whom the exclamation represents as attempting to use the knife, inflicts an injury upon A, and is put upon trial. . Here the exclamation is not admissible to illus[487]*487trate the subsequent act, since this is better illustrated by a physical fact—the act itself—to the commission of which the witness must be called.
If this conclusion be not correct, and it be held that the exclamation was admissible, either to identify the accused, to show flight, or for any other purpose, it will scarcely be denied that the accused must have heard it, and have heard it under circumstances calling for a response, before he could be charged by silence. The burden of showing that the exclamation was heard will, in such case, rest upon the State; and in a majority of cases this can only be done by circumstances, such as contiguity and other opportunities for hearing. But, whether shown by proof or by circumstances, the proof that the exclamation was heard by the accused must be the predicate for the introduction of the exclamation itself.
Admitting, however, that the exclamation was heard by appellant, it becomes a question whether the circumstances required of him a response. According to the testimony, another person accompanied appellant at the time the declaration was made. Was this declaration or exclamation a sufficient identification of the appellant to call upon him for a response? Did the declaration individualize him as even the one of the two persons against whom the charge was made?
But it is insisted by the assistant attorney general that the appellant is shown to have understood himself to be the person charged, by the fact that when he was being arrested he shot at one of the policemen and snapped his pistol at another. Let us, for the argument, concede that he was being arrested for the shooting of Persons, the deceased, does it follow that this knowledge came to him from the declarations and acts of bystanders? May he not have first learned this from his being arrested? The arrest, and the acts and declarations of appellant while being arrested, are admissible; but this would not render competent the declarations of bystanders that appellant was the man who did the shooting. The statement of facts informs us that “some one in the crowd pointed out defendant, and said, ‘There is the man who did the shooting.’ ”
Lewis Morris testified that one or two men passed into the Iron Front saloon, that they were almost running, and somebody said “there goes the man that shot Persons,” pointing out appellant. The above is the substance of the testimony on this point. It will be noticed that there is no evidence that appellant saw [488]*488the party point him out. He may have heard the remark, but there is no evidence that it was he that was individualized; this was not brought home to him, and he may have understood it to apply to the other man who was near him.
As above stated, to entitle the State to introduce the declaration of a bystander, it must be clearly shown that the defendant understood himself to be accused, and the circumstances must be such as to require from him a response. How, the failure in this case is at the threshold, for it is not shown that appellant, at the time of the remark, knew that he was the man referred to, and hence the declaration can not be used for the purpose of charging him with that concurrence of circumstances which would call upon him for a response.
Again, if the declarations of a bystander could, under any circumstances, be used for such purpose, they could not be used for the purpose of proving that the accused did the act charged. This being the case, great circumspection should be used in admitting such declarations, even in cases in which there is strong testimony to show that the defendant knew himself to be charged, and the circumstances are such as to call for a response. Because it is a fact that, if admitted, the jury will use for any and all purposes. This devolves upon the court the duty of giving to the jury clear and explicit instructions in confining it to the purposes for which it was allowed. They should be told that those declarations by themselves can not be used to show that the accused committed the act charged. We are of the opinion that the declarations under discussion were not, under the circumstances, admissible for any purpose.
II. The State, having introduced in evidence the dying declarations of deceased, in which the homicide was charged upon appellant, the testimony of the surgeon who saw deceased immediately after he was shot, and who attended him during the period of four or five months that elapsed before his death, was offered to show that deceased declared to him, within twenty or thirty minutes after the shooting, that he did not know who shot him, and that he had made the same declaration on one or two occasions thereafter. On objection by the State this testimony was ruled out, to which exception was taken.
Dying declarations derive their admissibility as evidence from the necessity of the case. They are generally made to friends of the deceased, and under circumstances where the physical conditions and surroundings of the declarant are such that cross [489]*489examination is unattainable. Made under a sense of nearly-impending death, the awful solemnity of the occasion stamps them with the verity which attends statements made under the sanction of an oath. But the allowance of them is a jealously guarded concession to the ends of human justice. That this is so is evidenced by the requirements as to predicate for their introduction, and also by the limitation upon their admissibility to the identity of the perpetrator and the circumstances of the crime. The oath may be dispensed with; but no circumstances of extremity can compensate the want of a cross examination. They are themselves hearsay testimony, and, as has been said, their admissibility springs out of the necessity of the case. But, after admitting them, it would be a perversion of all right reasoning to deny to an accused a like relaxation of the rule, the occasion for it being produced by a coincident and coextensive necessity. If the State may invoke a departure from the ordinary rules of evidence, upon the ground of necessity, would it not be a hardship to deny the same to the accused, when the necessity has been put upon him by the concession made to the State?
“ Statements by the defendant,” says Mr. Bishop, “contradictory of dying declarations, and contradictions in the latter, may be shown to detract from their weight with the jury.” (1 Bish. Crim. Proc., 1209.) The same doctrine is asserted in a long line of adjudicated cases. (McPherson v. The State, 9 Terg., 279; Moore v. The State, 12 Ala,., 764; People v. Lawrence, 21 Cal., 368.)
In delivering the opinion in the latter case, Field, C. J., said: “ The rule is general that the credit of a witness may be impeached by proof that he made statements contrary to what he has testified. There is, it is true, a condition to the rule, with reference to verbal statements, that the attention of the witness must be previously called to the particular occasion and" circumstances under which the supposed contradictory statements were made, in order to give him an opportunity of making any explanation of the matter which he may have. But this preliminary condition, it is clear, can not be complied with when dying declarations are offered in evidence, except in very rare cases. Such declarations are generally made to the physician of friends of the deceased, in the absence of the party against whom they are offered, who, of course, has no opportunity of cross examination, or of directing the attention of the deceased to any al[490]*490Ieged contradictory statements made by him. * * * There would be no justice, therefore, in any rule which would deprive the accused of the right to impeach the credit of the deceased by proof of his having made contradictory statements as to the homicide and its cause.”
Opinion delivered June 8, 1887.
The precise question here involved is one of first impression with the courts of last resort of this State. In Sutton v. The State (2 Texas Ct. App., 342), this court held statements contradictory of dying declarations introduced to be, under the circumstances of that case, inadmissible. In that case the dying declarations were introduced by the State, but subsequently—and before the contradictory statements were offered—withdrawn. The point of insistance was that, though withdrawn, the declarations necessarily influenced the minds of the jury, and it was for that reason urged that the contradictory statements should be admitted to counteract that influence. These statements being admissible for the single purpose of contradicting the dying declarations, the withdrawal of the latter left nothing to be contradicted, and the contradictory statements stood as naked hearsay, with no reason grounded in necessity to exempt them from the ordinary rule. The reasoning of that decision is not inharmonious with the conclusion here reached, neither from citations to authorities furnished by the State, nor from our own researches, have we been able to find a precedent for excluding the evidence of statements made by the deceased contradictory of his dying declarations, save in one case in the 20 Ohio Reports.
We are of opinion that the exclusion of the contradictory statements in this case was error, and that there was also error in admitting the declarations and acts pointing out appellant as the perpetrator of the homicide.
Reversed and remanded.