DAVIDSON, Presiding Judge.
Conviction of murder in the second degree, five years in the penitentiary being assessed as the penalty. The homicide occurred on Christmas evening. Deceased had gone to the little town, where the homicide occurred, to attend a Christmas tree, but at the time he reached there the crowd had dispersed. He went up to the stores where some parties were gathered. As deceased, Spencer, rode up, Lewis and Bramlett were trying to fight, and deceased Spencer asked what was the matter. Scott" replied, “Well, George Lewis and Nix (Bramlett) are trying to fight, and Nix jumped up and says, ‘What is it to you, you God damn son of a bitch/ and Spencer hit him. Then George reached for a rock and Nix jumped behind Joe Dick Adams and said, ‘Don’t let him hit me with the rock/ and George Spencer said, ‘What are you hitting me with ?’ ” This was the testimony of George Lewis. The evidence further shows, in this connection, that the fight between George Spencer and Nix Bramlett was renewed in the house; and that during the trouble Spencer had received a cut on the face, and Bramlett was severely cut in several places; that the parties then separated. Objection was urged to the introduction of the declarations of the bystanders, in the absence of defendant. The court informed counsel that, if he objected to the acts of the parties, he would sustain their objection; but counsel stated they did not object to the acts, but did object to the declarations. The killing occurred at Gray’s store, some distance away from where the first difficulty occurred between Spencer and Bramlett. It is a fact that appellant had nothing to do with the first difficulty, and the facts show he was not present, though the court says, in the qualification to the bill, that appellant was in such position that he might have heard what occurred; but it is nowhere asserted or contended that appellant had anything to do with the original difficulty. We believe this testimony was inadmissible. For a discussion of this subject, see Brumley’s case, 21 Texas Crim. App., 222; Johnson v. State,
22
Texas Crim. App., 206; Ball v. State, 29 Texas Crim. App., 107; Fuller v. State, 30 Texas Crim. App., 559; McClure v. State, 53 S. W. Rep., 110.
By the same witness Lewis, the State was permitted to prove, after Spencer and Bramlett came out of Edwards’ store, and after their separation in the ábsence of defendant, deceased Spencer said to Scott, “Scott, go get my horse and hat and I will go get the old doctor to fix this cut on my face.”
This declaration was clearly inadmissible; and the testimony of Scott to the same effect ought also to have been excluded. See the authorities above cited. It may be ivell enough to state in this connection that after the difficulty between Spencer and Bramlett, Bramlett went to Dr. Gray’s store, for the purpose of having his wounds dressed; that appellant was in partnership with his father, Dr. Gray, and was in the store at the time Bramlett entered; that he took him out of the store, got a pan of water and was washing the blood from his wounds, when Spencer came around the store, to where they were, and where the killing occurred. It is not necessary to add anything to what has been said in the cases cited as to the declarations, intentions, 'etc., of deceased when sought to be used against appellant.
Within from five to fifteen minutes after the homicide, in the house of witness Hampton, in the presence of Hampton and his wife, appellant made a statement in regard to the attendant facts of the killing. This was rejected by the court, and appellant reserved his exception. This seems to have been excluded by the court because immediately after the killing appellant had had a hurried conversation with Joe Dick Adams, in which Adams had advised him to get his horse and leave, and appellant remarked that he would not run away. Adams again advised him to get away from that immediate place. It was proposed to show by this witness that at the time appellant entered the hone he was white and nervous and very much excited; that immediately upon coming into the room he pulled down the window-shade, so as to prevent being seen in the .house. We are of opinion that this testimony should have been admitted. Castillo v. State, 31 Texas Crim. Rep., 145; Craig v. State, 30 Texas Crim. App., 619; McGhee v. State, 31 Texas Crim. Rep., 71.
It is also contended that the court should have submitted a charge applicable to manslaughter. The following testimony is relied upon to suggest that issue. Appellant says he saw part of the previous difficulty between Spencer and Bramlett. “I saw Spencer get down bff his horse and saw him strike Bramlet. I could not see the licks passing. Spencer and Bramlett fought out of doors and then went into the house and there were a few licks passed in there. I saw Nix Bramlett after the difficulty in our store. My father and myself own it. I was selling goods and waiting on the trade that day. The first time I saw Nix he was out in the road. He came in the back door of the store. He was bleeding all over and cut with a knife. I told him to get out of the store and I would get some water and wash him. He came in the back
door with Joe Dick Adams and Jim Hammack. Joe Dick asked where my father was, and I told him it would not be any use to wait for him, for he would be there as soon as he could get there. He said, ‘this boy is bleeding to death/ I got a pan of water and stepped out there and was pouring water on his hands and washing him, and Bramlett was mad and cursing and telling what he would do when he got well, and Spencer came around the corner of the house and just as he came up Bramlett said what he would do when he got well; and Spencer said, ‘You will play hell, God damn you/ I said, ‘Go on away and let him alone, you have killed him already/ And Spencer spoke and said, ‘God damn you, I am the man for you/ and he came around there with his hand raised ready to strike and kept coming on toward me with the knife. I had a pistol in my hip pocket, and I knew if I didn’t shoot him he would kill me. I shot him because I knew if I didn’t shoot him he would kill me. I said, as soon, and fired, ‘God damn you, you can’t curse me and come on me with a knife/ When I shot, .Spencer sat down and fell backwards. He was stooping over when he fell. He was about six feet from me. After I shot, I turned away and walked to the corner of the house, and Joe Dick Adams jumped out of the door and grabbed me by the arm, and started off with me, and asked me if I had a horse, and I said I had; and he said, ‘You have got to get away from here/ and I said, T am not going to run off/ He said, ‘Ho, but you have got to get away from here/ Then he went back to see how bad the man was hurt, and I crawled through the fence, heard a noise, and stopped to see where the noise was, I just stopped long enough to get the direction, and then I went on to Hampton’s house.” He further testified in this connection, that he had twice stepped the distance he had traveled that night, and one time it took him five minutes and the other four and one-half minutes to travel the distance to Hampton’s house, and that he traveled more rapidly the night of the homicide, because he was excited and in a hurry. We believe this testimony suggested the issue of manslaughter and it should have been given in the charge to the jury. There had been a separation of the parties and a clear abandonment of the difficulty by Bramlett when he went to the store.
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DAVIDSON, Presiding Judge.
Conviction of murder in the second degree, five years in the penitentiary being assessed as the penalty. The homicide occurred on Christmas evening. Deceased had gone to the little town, where the homicide occurred, to attend a Christmas tree, but at the time he reached there the crowd had dispersed. He went up to the stores where some parties were gathered. As deceased, Spencer, rode up, Lewis and Bramlett were trying to fight, and deceased Spencer asked what was the matter. Scott" replied, “Well, George Lewis and Nix (Bramlett) are trying to fight, and Nix jumped up and says, ‘What is it to you, you God damn son of a bitch/ and Spencer hit him. Then George reached for a rock and Nix jumped behind Joe Dick Adams and said, ‘Don’t let him hit me with the rock/ and George Spencer said, ‘What are you hitting me with ?’ ” This was the testimony of George Lewis. The evidence further shows, in this connection, that the fight between George Spencer and Nix Bramlett was renewed in the house; and that during the trouble Spencer had received a cut on the face, and Bramlett was severely cut in several places; that the parties then separated. Objection was urged to the introduction of the declarations of the bystanders, in the absence of defendant. The court informed counsel that, if he objected to the acts of the parties, he would sustain their objection; but counsel stated they did not object to the acts, but did object to the declarations. The killing occurred at Gray’s store, some distance away from where the first difficulty occurred between Spencer and Bramlett. It is a fact that appellant had nothing to do with the first difficulty, and the facts show he was not present, though the court says, in the qualification to the bill, that appellant was in such position that he might have heard what occurred; but it is nowhere asserted or contended that appellant had anything to do with the original difficulty. We believe this testimony was inadmissible. For a discussion of this subject, see Brumley’s case, 21 Texas Crim. App., 222; Johnson v. State,
22
Texas Crim. App., 206; Ball v. State, 29 Texas Crim. App., 107; Fuller v. State, 30 Texas Crim. App., 559; McClure v. State, 53 S. W. Rep., 110.
By the same witness Lewis, the State was permitted to prove, after Spencer and Bramlett came out of Edwards’ store, and after their separation in the ábsence of defendant, deceased Spencer said to Scott, “Scott, go get my horse and hat and I will go get the old doctor to fix this cut on my face.”
This declaration was clearly inadmissible; and the testimony of Scott to the same effect ought also to have been excluded. See the authorities above cited. It may be ivell enough to state in this connection that after the difficulty between Spencer and Bramlett, Bramlett went to Dr. Gray’s store, for the purpose of having his wounds dressed; that appellant was in partnership with his father, Dr. Gray, and was in the store at the time Bramlett entered; that he took him out of the store, got a pan of water and was washing the blood from his wounds, when Spencer came around the store, to where they were, and where the killing occurred. It is not necessary to add anything to what has been said in the cases cited as to the declarations, intentions, 'etc., of deceased when sought to be used against appellant.
Within from five to fifteen minutes after the homicide, in the house of witness Hampton, in the presence of Hampton and his wife, appellant made a statement in regard to the attendant facts of the killing. This was rejected by the court, and appellant reserved his exception. This seems to have been excluded by the court because immediately after the killing appellant had had a hurried conversation with Joe Dick Adams, in which Adams had advised him to get his horse and leave, and appellant remarked that he would not run away. Adams again advised him to get away from that immediate place. It was proposed to show by this witness that at the time appellant entered the hone he was white and nervous and very much excited; that immediately upon coming into the room he pulled down the window-shade, so as to prevent being seen in the .house. We are of opinion that this testimony should have been admitted. Castillo v. State, 31 Texas Crim. Rep., 145; Craig v. State, 30 Texas Crim. App., 619; McGhee v. State, 31 Texas Crim. Rep., 71.
It is also contended that the court should have submitted a charge applicable to manslaughter. The following testimony is relied upon to suggest that issue. Appellant says he saw part of the previous difficulty between Spencer and Bramlett. “I saw Spencer get down bff his horse and saw him strike Bramlet. I could not see the licks passing. Spencer and Bramlett fought out of doors and then went into the house and there were a few licks passed in there. I saw Nix Bramlett after the difficulty in our store. My father and myself own it. I was selling goods and waiting on the trade that day. The first time I saw Nix he was out in the road. He came in the back door of the store. He was bleeding all over and cut with a knife. I told him to get out of the store and I would get some water and wash him. He came in the back
door with Joe Dick Adams and Jim Hammack. Joe Dick asked where my father was, and I told him it would not be any use to wait for him, for he would be there as soon as he could get there. He said, ‘this boy is bleeding to death/ I got a pan of water and stepped out there and was pouring water on his hands and washing him, and Bramlett was mad and cursing and telling what he would do when he got well, and Spencer came around the corner of the house and just as he came up Bramlett said what he would do when he got well; and Spencer said, ‘You will play hell, God damn you/ I said, ‘Go on away and let him alone, you have killed him already/ And Spencer spoke and said, ‘God damn you, I am the man for you/ and he came around there with his hand raised ready to strike and kept coming on toward me with the knife. I had a pistol in my hip pocket, and I knew if I didn’t shoot him he would kill me. I shot him because I knew if I didn’t shoot him he would kill me. I said, as soon, and fired, ‘God damn you, you can’t curse me and come on me with a knife/ When I shot, .Spencer sat down and fell backwards. He was stooping over when he fell. He was about six feet from me. After I shot, I turned away and walked to the corner of the house, and Joe Dick Adams jumped out of the door and grabbed me by the arm, and started off with me, and asked me if I had a horse, and I said I had; and he said, ‘You have got to get away from here/ and I said, T am not going to run off/ He said, ‘Ho, but you have got to get away from here/ Then he went back to see how bad the man was hurt, and I crawled through the fence, heard a noise, and stopped to see where the noise was, I just stopped long enough to get the direction, and then I went on to Hampton’s house.” He further testified in this connection, that he had twice stepped the distance he had traveled that night, and one time it took him five minutes and the other four and one-half minutes to travel the distance to Hampton’s house, and that he traveled more rapidly the night of the homicide, because he was excited and in a hurry. We believe this testimony suggested the issue of manslaughter and it should have been given in the charge to the jury. There had been a separation of the parties and a clear abandonment of the difficulty by Bramlett when he went to the store. Appellant was apprised of the fact that Bramlett had been seriously cut by appellant, and was talking about it at the time Spencer appeared upon the scene. Appellant was not aware of the reason for Spencer coming upon the scene, and with the facts before him, he could have reached the conclusion that Spencer was following up the difficulty, with the intention of renewing it, and that when he interposed objection and urged him to go away, he turned upon him with the intention of engaging in a difficulty and using a knife. This, we think, presented both issues of manslaughter and self-defense. It may be also stated in this connection that the night was dark as shown by the testimony. Witness Joe Dick Adams, who was present at the homicide corroborated appellant in regard to the circumstances detailed by appellant in his testimony in regard to the facts and remarks. This is his statement : “When appellant saw Spencer coming up he remarked to Spen
cer, ‘Don’t come up here George. You have cut this man all to pieces now,’ and Spencer said, ‘Go to hell,’ and he stepped up there and Gray shot him. Spencer was coming up toward Gray when he shot him. Gray said, ‘You can’t tell me to go to hell and come at me with a knife,’ just after the shot was fired.” Tollett v. State, 55 S. W. Rep., 573; Gilcrease v. State, 33 Texas Crim. Rep., 619; Polk v. State, 30 Texas Crim. App., 657; High v. State, 26 Texas Crim. App., 545; Bonner v. State, 29 Texas Crim. App., 223; Warthan v. State, 55 S. W. Rep., 55.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.