Willson, Judge.
There is no dispute as to the fact that the defendant shot George Dent with a pistol, but there is a conflict of evidence as to the circumstances under which the shooting was done. Several witnesses in behalf of the State testified that George Dent, at the time he was shot by defendant, was unarmed, and was not making any attack upon the defendant. Witnesses in behalf of the defendant testified that Dent assaulted the defendant, caught him with one hand by the collar, and with a knife, which he held in the other hand, struck several blows at him. Other witnesses for the defendant saw Dent have the knife at the time, but did not see him use or attempt to use it.
Defendant offered to prove by a witness, York, that on the next day after the shooting, late in the evening, he saw the defendant; that defendant then had on the same clothes that he was wearing when the shooting occurred; that he saw several cuts in the coat, [48] and also saw a cut on defendant’s neck, and that neither defendant’s coat nor throat were cut previous to the difficulty. He also proposed to prove by another witness, Good, his brother, that he saw the defendant on the same night of the difficulty, some three hours thereafter, and about nine miles distant from the place of the difficulty, and that defendant had a fresh knife-cut about an inch long on his throat and several knife-cuts on his coat. He also proposed to prove, by these witnesses, that the defendant, at the times referred to by them, told them that Dent had cut him on the throat, and had cut at him several times, cutting his coat, before he, the defendant, shot. Upon objection made by the district attorney, this proposed testimony was rejected and the defendant excepted.
There was no error in rejecting the testimony offered to prove the declarations of the defendant as to the cuts upon his coat and throat. Such declarations were not a part of the res gestee, and come Avith in the category of self-serving declarations. They Avere the defendant’s talk about the facts, and not the facts talking through the defendant. (Hobbs v. The State, 16 Texas Ct. App., 517.)
But the testimony offered to prove the cuts on the coat and throat of defendant Avas, Ave think, admissible. These cuts were physical facts of an exculpatory nature, corroborating the testimony of the defendant’s witnesses, Avho testified that they saw Dent cutting at defendant Avith a knife. The testimony as to them referred to a time reasonably proximate to the difficulty, and tended to throw light upon the transaction. “ When Ave investigate a particular act alleged to baAre been committed, the mind naturally craves knowledge of everything that transpired at the time and place,— what Avas said and done by the parties involved,— so that Ave may be possessed of all the material that would in any Avise aid in forming a judgment of the act, whether criminal or not, and, if culpable, to Avhat degree. . . . Ho matter hoAv slight the inference may be that can be drawn from a particular fact, it is competent to be considered as an element of the entire concrete of facts from Avhich the deduction is to be made. . . . The defendant was entitled to prove any circumstance that might be calculated, hoAvever feebly, to sustain his hypothesis.” (Scott v. The State, 56 Miss., 287; Russell v. The State, 11 Texas Ct. App., 288; Burrill on Cir. Ev., 508 et seq.)
In this case the defendant’s hypothesis was that Dent assaulted him Avith a knife, cutting at him several times, cutting his coat and his throat, and that he shot Dent in self-defense. This hypothesis xvas supported by the testimony of his witnesses, Avhile it was con[49] tradicted by that of the State’s witnesses. This vital issue was before the jury for their determination. It was the defendant’s right to support his defense by every legitimate circumstance; that is, by every fact, however apparently trivial, which would tend in even a remote degree to that end. That fresh knife-cuts were seen upon his person a few hours after the rencontre might convince the jury that Dent had assaulted and attempted to kill him with a knife, and, if thus convinced, he might be acquitted. It was for the jury alone to pass upon the weight to be given to the evidence, and it is impossible for a court to say what effect or influence this rejected evidence might have produced upon the minds of the jury, had it been before them. That evidence of this character is easily fabricated is true, but this fact is no valid objection to its competency. It is an objection only to its weight, and such objection can only be considered by the jury. "We are clearly of the opinion that the court erred in rejecting the testimony offered by the defendant to prove the fresh knife-cuts upon his clothing and person.
This opinion is apparently in conflict with West v. The State, 7 Texas Ct. App., 150, though it will be seen, upon an examination of the facts of that case, that the proposed evidence as to the cut upon the coat of the defendant was uncertain as to the exact time after the killing when such cut was observed. In holding the evidence as to the cut to be inadmissible in that case, the learned judge, in the opinion, cites no authority, and the reasons stated for the holding are, to the mind of the writer, far from convincing. It was doubtless under the authority of that decision that the learned trial judge rejected the testimony offered by the defendant.
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Willson, Judge.
There is no dispute as to the fact that the defendant shot George Dent with a pistol, but there is a conflict of evidence as to the circumstances under which the shooting was done. Several witnesses in behalf of the State testified that George Dent, at the time he was shot by defendant, was unarmed, and was not making any attack upon the defendant. Witnesses in behalf of the defendant testified that Dent assaulted the defendant, caught him with one hand by the collar, and with a knife, which he held in the other hand, struck several blows at him. Other witnesses for the defendant saw Dent have the knife at the time, but did not see him use or attempt to use it.
Defendant offered to prove by a witness, York, that on the next day after the shooting, late in the evening, he saw the defendant; that defendant then had on the same clothes that he was wearing when the shooting occurred; that he saw several cuts in the coat, [48] and also saw a cut on defendant’s neck, and that neither defendant’s coat nor throat were cut previous to the difficulty. He also proposed to prove by another witness, Good, his brother, that he saw the defendant on the same night of the difficulty, some three hours thereafter, and about nine miles distant from the place of the difficulty, and that defendant had a fresh knife-cut about an inch long on his throat and several knife-cuts on his coat. He also proposed to prove, by these witnesses, that the defendant, at the times referred to by them, told them that Dent had cut him on the throat, and had cut at him several times, cutting his coat, before he, the defendant, shot. Upon objection made by the district attorney, this proposed testimony was rejected and the defendant excepted.
There was no error in rejecting the testimony offered to prove the declarations of the defendant as to the cuts upon his coat and throat. Such declarations were not a part of the res gestee, and come Avith in the category of self-serving declarations. They Avere the defendant’s talk about the facts, and not the facts talking through the defendant. (Hobbs v. The State, 16 Texas Ct. App., 517.)
But the testimony offered to prove the cuts on the coat and throat of defendant Avas, Ave think, admissible. These cuts were physical facts of an exculpatory nature, corroborating the testimony of the defendant’s witnesses, Avho testified that they saw Dent cutting at defendant Avith a knife. The testimony as to them referred to a time reasonably proximate to the difficulty, and tended to throw light upon the transaction. “ When Ave investigate a particular act alleged to baAre been committed, the mind naturally craves knowledge of everything that transpired at the time and place,— what Avas said and done by the parties involved,— so that Ave may be possessed of all the material that would in any Avise aid in forming a judgment of the act, whether criminal or not, and, if culpable, to Avhat degree. . . . Ho matter hoAv slight the inference may be that can be drawn from a particular fact, it is competent to be considered as an element of the entire concrete of facts from Avhich the deduction is to be made. . . . The defendant was entitled to prove any circumstance that might be calculated, hoAvever feebly, to sustain his hypothesis.” (Scott v. The State, 56 Miss., 287; Russell v. The State, 11 Texas Ct. App., 288; Burrill on Cir. Ev., 508 et seq.)
In this case the defendant’s hypothesis was that Dent assaulted him Avith a knife, cutting at him several times, cutting his coat and his throat, and that he shot Dent in self-defense. This hypothesis xvas supported by the testimony of his witnesses, Avhile it was con[49] tradicted by that of the State’s witnesses. This vital issue was before the jury for their determination. It was the defendant’s right to support his defense by every legitimate circumstance; that is, by every fact, however apparently trivial, which would tend in even a remote degree to that end. That fresh knife-cuts were seen upon his person a few hours after the rencontre might convince the jury that Dent had assaulted and attempted to kill him with a knife, and, if thus convinced, he might be acquitted. It was for the jury alone to pass upon the weight to be given to the evidence, and it is impossible for a court to say what effect or influence this rejected evidence might have produced upon the minds of the jury, had it been before them. That evidence of this character is easily fabricated is true, but this fact is no valid objection to its competency. It is an objection only to its weight, and such objection can only be considered by the jury. "We are clearly of the opinion that the court erred in rejecting the testimony offered by the defendant to prove the fresh knife-cuts upon his clothing and person.
This opinion is apparently in conflict with West v. The State, 7 Texas Ct. App., 150, though it will be seen, upon an examination of the facts of that case, that the proposed evidence as to the cut upon the coat of the defendant was uncertain as to the exact time after the killing when such cut was observed. In holding the evidence as to the cut to be inadmissible in that case, the learned judge, in the opinion, cites no authority, and the reasons stated for the holding are, to the mind of the writer, far from convincing. It was doubtless under the authority of that decision that the learned trial judge rejected the testimony offered by the defendant.
]Mr. Wharton says that “ all facts that go either to sustain or impeach a hypothesis logically pertinent are admissible.” (Whart. Cr. Ev., § 23.) If defendant, a few hours after the rencontre, had fresh lcnife-cuts upon his person, this would be a fact-—a physical fact, not a mere declaration made by him,— and this fact would go to sustain a hypothesis logically pertinent, that is, that these knife-cuts had been inflicted in the difficulty with Dent. Suppose Dent had cut off a piece of the defendant’s ear, and the piece had been found at the place of the difficulty, would it not be competent for the defendant to prove that on the next day after the difficulty a portion of one of his ears was missing, and that the ear had the appearance of having been freshly cut, and that the piece of ear found at the place of the difficulty fitted exactly to the wounded ear of the defendant? Suppose the witnesses who saw the knife in Dent’s hand had described the same particularly, giving the length, width and [50] shape of its blade, would it not be competent to show that when the defendant was seen the next day he bore upon his person fresh wounds which corresponded exactly with the blade of the knife described by the witnesses? Suppose the blade had been broken while inflicting a wound, an,d a portion of it left in the wound, would it not be competent to prove this fact, and to prove that Dent was found after the difficulty to have a knife with a broken blade which exactly fitted to the piece found in the wound ? These illustrations, it is true, would be more strongly exculpatory, and more directly connected with the main transaction than the fact which was proposed to be proved by the defendant in this case. But there can be no difference as to the principle governing the admissibility of such testimony. The difference is not as to competency, but as to weight. Its character is precisely the same in the instances supposed and in the instance wTe are considering, and the deductions or inferences arising from such evidence would differ only in their strength. The principle upon which such testimony is competent is that, if the cuts were inflicted during the rencontre, they are a part of the transaction and are res gestee. It is not the time when the cuts are first discovered that controls the competency of evidence in regard to them. It is the time when they were inflicted that determines that question. If they were inflicted during the difficulty, they are res gestee. If inflicted at any other time, they are irrelevant and inadmissible. Whether or not the cuts proposed to be proved in this instance were res gestee, that is, a part of the transaction of the shooting of Dent by the defendant, wras a question to be determined by the jury, and which should have been submitted to them. If the cuts were fabricated by the defendant, or were inflicted in any other way than by the act of Dent, of course it would be competent to show the facts, and it would be for the jury to determine from a consideration of the entire evidence whether or not these cuts were connected with the main transaction, and the manner of such connection, if any, and the effect which should be given to it with reference to the defendant’s act of shooting.
We have examined and considered other questions presented in the record which we will not take time to discuss, leaving the case with the remark that the only material error committed on the trial was the rejection of the evidence offered to prove cuts upon the defendant; and for this error the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered April 22, 1885.]