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    SINGLETON v. STATE.
    (No. 3066.)
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    On Motion for Rehearing, May 20, 1914.)
    1. Homicide (§ 194) — Self-Defense—Evidence — Innocent Motive Unknown to Defendant.
    Where defendant relied for a defense for shooting one of a party who were in a yard, at the fence, when he drove along the road, not on the fact that they were together there, but that they came out, and first fired at him, evidence that they had come to the fence to repair it, and had done so, is not objectionable, within the rule that an innocent motive, unknown to defendant, for acts producing an appearance on which he had a right to act in self-defense, may not be shown.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 417-419; Dec. Dig. § 194.)
    2. Homicide (§ 301) — Defense of Another— Unknown Attack.
    Defendant is not entitled to an instruction that, if the person whom he shot, or those with him, made an unlawful attack on defendant’s daughter, he should be acquitted, where the evidence is that any such assault was unknown to him, and after he shot.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. § 301.]
    3. Homicide (§ 199) — Decree of Assault-Evidence.
    A physician having testified that he would not state the wound was such as might probably result in death, his testimony, showing the bullet did inflict serious bodily injury, was admissible on the issue, if defendant was not guilty of assault to murder, whether the wound was of the character to call for a charge on aggravated assault or simple assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 424; Dec. Dig. § 199.]
    4. Homicide (§ 95) — Reduction of Degree — Adequate Cause — Statement of Another.
    Insulting language towards and of defendant’s daughter, by one not present at the time of the shooting, though the father of the one shot, could not reduce the offense from assault to murder to aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 123; Dec. Dig. § 95.]
    5. Homicide (§ 95) — Reduction of Degree-Adequate Cause.
    Simply calling defendant’s daughter a “wolf” was not statutory adequate cause to reduce a shooting from assault to murder to aggravated assault, though it would be a circumstance to be considered along with any others.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 123; Dec. Dig. § 95.]
    6. Criminal Law (§ 918) — New Trial — Absence of Complaint at Trial.
    Merely swearing a state’s witness in the absence of defendant, being first complained of in the motion for new trial, presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2163-2192, 2195, 2196, 2219-2224; Dec. Dig. § 91S.]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Audie Singleton was convicted of assault with intent to murder, and appeals.
    Affirmed.
    A. S. Fisher, Richard Critz, and A. S. Fisher, Jr., all of Georgetown, for appellant. J. F. Taulbee, of Georgetown, and C. • E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Deo. Dig. & Aid. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of assaulting John Hunt with intent to murder him, and prosecutes this appeal from such conviction.

The evidence would show on Sunday morning, the 6th of July, 1913, John Hunt and his brother Raymond Hunt were at the house of their brother George Hunt, when George Hunt’s wife came and told him that cattle had gotten into the garden, and he ought to fix the fence. George Hunt secured a hammer, staples, etc., and asked John and Raymond if they would go with him. They went with him and they repaired the fence. While they were there another brother, Sank Hunt, and Jack Langley came driving by in a surrey and stopped. While they were there fixing the fence, Misses Ollie 1-Iunt and Viola Hunt and Miss Mabel Rife came down to the garden to gather vegetables. The road leading from appellant’s house to the Primitive Baptist Church, where there was preaching that day, led by the house of George Hunt and the place where the Hunts were repairing the fence. Appellant, George Man-ess, Obed Baker, and Miss Lydia Singleton, and Coley Fisher, and Miss Clydie Singleton left the Singleton home in four buggies on their way to the church. When they got near the point where the fence was being repaired is the point where a sharp conflict in the testimony occurs. Appellant says he had received information of sundry and various threats made by the Hunts, threatening violence, and that, when he drew near the point where the Hunts were, John, Raymond, and George Hunt started towards him, when he hitched his horse and got out of his buggy, that John Hunt had a gun in his hand, and then testifies: “From the way the Hunts were coming towards me, and the expressions on their faces, and the number of them, I knew they were mad, and felt that they were coming toward me for an unfriendly purpose. When I tied my horse, I walked a few steps north, not exactly towards the Hunts, but kinder back towards the road, leaving them a little to my right. I did not see what the people that were with me were doing at this time; the Hunts were crowding me so close I did not have time to watch my people at all. As they came up, Ollie 1-Iunt was a little bit ahead of 'George and Viola Hunt, and they passed me a little to the left. The other Hunts were coming up, facing me. Jack Langley did not come directly toward me; he came up the fence kinder towards George Hunt’s barn. As the Hunts were coming toward me, I said: ‘You people have stopped me here on the road and I haven’t done you any harm; I am going to church;’ and about that time George Hunt was passing to my left, and I just turned around to him and said: ‘George, make Johnnie put up that gun; if we have any trouble to settle, we can settle it without guns.’ George Hunt never spoke a word in reply. When I was talking to George Hunt, he was facing me, and I was with my back to the crowd coming up. Just then I heard a gun fire, and I whirled around and jerked my pistol. I supposed that Jack Langley fired that, because, when I turned around, John Hunt was fixing to fire at me. I threw my eyes on John first, because he was closest to me, and saw that he was fixing to get the gun up to his shoulder. I rather think the gun he had was a single-barrel shotgun, but X couldn’t say. positively whether it was a shotgun or a rifle. He just jerked the gun up, and it looked like he was fixing tof get it in shape for shooting, and so X shot him, and in an instant he shot at me, and then ran. I then turned to Jack Langley, and did not pay attention to what became of John Hunt’s gun. I shot one time at^ John Hunt, and during that time Jack Langley continued firing at me from where he was over towards the rock fence, about 30 steps east of me. I then fired at Jack Langley two or three times, or maybe four; I don’t know how many times, but don’t reckon that I hit him. I did not empty my gun at him. Jack Langley was sitting down, and had his gun in both hands when he was shooting at me, and, when he got up, I saw that he had quit shooting; and I said, ‘Jack, throw your gun away, throw it over the fence, or I will kill you;’ and he threw it, but it hit the fence and fell back, and then he turned and ran. X did not shoot any more after that. I then turned around, and, as I did so, I saw George Hunt lying on the ground. I did not shoot at George Hunt. I never did shoot in the direction of George Hunt at any time during the fight. I shot at John Hunt, because when I whirled around he was the first one I flashed my eyes on, and I saw him with the gun, and thought he was going to kill me with it. When I saw all' these Hunts around there, I just thought they were going to wind us up, like I had been hearing about. I did not have an ax handle with me, and did not take an ax handle out of my buggy. I did not have an ax handle in my hand at all down there that day. After Jack Langley threw his gun away, I turned around and went back to my buggy, and at that time George Hunt was lying on the ground, and X saw him trying to hide something between his legs, which I took for a gun; and I said, ‘You better keep that gun hid.’ I then threw out my shells; I think I threw out five shells; and had one loaded cartridge in my gun.” This is appellant’s version of the affair, and it is in the main supported by those who were with him.

On the other hand, the Hunts and those with them say that none of the Hunts were armed, and were in their shirt sleeves. They say, taking Raymond Hunt’s testimony which is in the main supported by all those with him: “When I first saw Singleton, he was in a buggy, coming down the road. He was in a buggy by himself, and George Maness was in a buggy behind Singleton, and back of George Maness was either the Fisher boy or the Baker boy in a buggy. Fisher and Baker were also in buggies and had the two Singleton girls with them; there being a couple in each buggy. The first thing that attracted my attention was that one of those girls screamed and said to the defendant, ‘Don’t do that;’ and I looked up and saw Singleton turn out of the road and tie his horse; then he went to the back of his buggy and took an ax handle out of the buggy. While Singleton was tying his horse and getting the ax handle out of the buggy, I also saw George Maness. Maness was tying his horse, or he went through the motion of doing so; I think maybe he wrapped his reins to a bush, and then he went around to the back of his buggy and took a pistol out of it; it looked like a 38 or 45, I don’t know which, but I know it was a pistol. When the defendant got the ax handle, he just took it in his hand and started up towards where we were. I did not measure the distance he came towards us with the ax handle in his hand, but I expect he came fully 30 yards; it might not have been over 20 or 25 yards; I am just guessing at the distance. We did not start towards him until he advanced on us with the ax handle. 1 suppose he advanced at least 10 steps before we started towards him. When we advanced towards him, we were advancing towards George’s house. I did not have anything with me, stick, knife, pistol, or anything of that kind. I was in my shirt sleeves, and had my sleeves rolled up above my elbows. I saw my brother George, and he was not armed. Singleton was coming towards us with the ax handle in a pretty good walk, a little above the average walk, and looked like he was angry. * * * When he came across the open place towards us with the ax handle, I suppose he advanced fully 10 steps before we ever started out towards him. He was between us and the house, just a little bit to the right, and when he came towards us with the ax handle we started out kind of meeting him. My brother John was about seven feet to my left; we were about side by side; and, when Singleton got up within about 15 feet of us, he said, ‘Stop! I am loaded for you;’ and threw his ax handle down; and Brother John and I both stopped. As to whether I know to whom he was talking at that time, I will say that he was looking right straight at Brother John and didn’t seem to pay much attention to me at the time. I believe he used some curse words when he said, ‘Stop! I am loaded for you.’ To my best memory the exact words he used were: ‘Stop, God damn you! I am loaded for you.’ The next person to speak was Brother John; he said to Singleton, ‘Oh, don’t do that. What is the matter with you?’ I think he called Singleton’s name, but am not positive. He said, ‘What are you going to do that for? Don’t do that.’ And he called Singleton’s name, too, but just how he used these words I can’t repeat; however, those were the words he used. Singleton then pulled his gun and fired at my brother John and hit him. I know he hit him when he fired. John then sort of reeled and almost fell, but he turned to the left and went up the hill. Singleton then fired at another man right behind me somewhere, and that was my brother George. X saw him shoot at the man behind me; I did not see right then who it was, but saw afterwards that it was my brother George. When he shot at the man back behind me he then turned around and threw his gun down on me, and I ran out to one side of the road where there was a hole next to the road, and I went into that hole just about the time he shot at me. tie did not hit me, but covered me up in smoke. I heard the pistol shot just as I ran into the hole. At that time he was not over 15 feet from me. .He shot at me only once. After I ran oft I looked back and saw Brother George lying on the ground, and at that time I saw Singleton shooting at Jack Langley, and then I saw Langley pull his gun and shoot at Singleton, and then I ran towards the house. I am positive that I heard four shots before Langley fired his gun.” This is ,the version the state relied on for a conviction, and it was shown by Lee J. Rountree and J. F. Taulbee that the fence had in fact been repaired.

In bills of exceptions and one very lengthy one, it is shown that appellant objected to all testimony showing that the Hunts were at the point designated to repair a' fence, and that the fence had been repaired; that appellant did not know this fact; and this is evidence of a motive unknown to appellant at the time. The Hunts all lived there on adjoining farms, and that they were at'George Hunt’s home on that Sunday morning was made known to appellant before he left home, as is shown by the testimony of his witness Coley Fisher, and he gives this as a reason why he armed himself before starting to go by George Hunt’s home. It may be said to be true that he was not made aware that they were repairing a fence on the road near the house, and neither does the record disclose that the Hunts, or either of them, knew that appellant would pass along there that day. So the record does not bring this evidence within the rule of law relied on by appellant about testimony of undisclosed motive. The Hunts, nor either of them, had gone to no place where they knew or had the least idea they would come in contact with appellant, so far as this record discloses, while appellant had gone, as he had a right to dp, where he knew he would pass the place where he had been informed that morning the Hunts were gathered, and he says for this reason he armed himself. Again, appellant does not rely for a defense of his action upon the fact that the Hunts were together at the place- where the fence was repaired, for he testified had they remained at this place he would have driven on by, paying no attention to this fact, but the fact that they advanced, John Hunt being armed, towards him in a threatening manner was the reason why he got out of his buggy and hitched his horse; he furthermore says that he made no demonstration of any character until after he was fired on by John Langley, when he reached for his pistol, and, as he did so, John Hunt attempted to shoot him with a gun, when he shot John Hunt. And, if this state of facts is true, appellant would be guilty of no offense, regardless of the reason why the Hunts, instead of being in the house, were down there near the road at the fence. On the other hand, the state’s ease is that, when appellant got near them, he tied his Iiorse, got out of the buggy, and, with an ax handle in his hand, started towards the Hunts, when the Hunts advanced towards him in their shirt sleeves unarmed, and, before they or any of them had made any hostile demonstration, shot John 1-Iunt, shot George Hunt, shot at Raymond Hunt and John Langley. Appellant relies on an actual attack on him, and all his testimony goes to that point, and not upon appearances of danger, viewed from his standpoint from the fact they had gathered at the fence, and from some word or act then done (not amounting to an actual attack) for a defensive theory. The fact they had gone down there to repair and had repaired a fence would not and could not be such an explanation of their acts on this occasion as could or would injuriously affect appellant, when his witness Coley hisher testified: “I saw four or five persons at George Hunt’s when I passed there, going to Singleton’s. I said something to the appellant, Audie Singleton, with reference to seeing these parties at George Hunt’s, and what was the matter there.” Appellant testified that this witness told him this fact, and gave that as his reason why he armed himself before going by George Hunt’s. It is not a ease where the person on trial was approached by the person assaulted; it is not a case of an unexpected meeting whén he was not looking to meet such person; it is not a case where the assaulted party had gone to a place where he would likely meet the person on trial, but a case where the person on trial deliberately went where he knew he would necessarily pass by where they were; and, under such circumstances, the rules of law as announced in Brumley v. State, 21 Tex. App. 222, 17 S. W. 140, 57 Am. Rep. 612, Gilcrease v. State, 33 Tex. Cr. R. 619, 28 S. W. 531, Ball v. State, 29 Tex. App. 125, 14 S. W. 1012, and other cases cited by appellant do not apply. We do not wish to be understood as questioning nor limiting the rule of law as announced in those cases, for in each of them it will be seen it was where the deceased had gone to the place where they knew they would or would likely meet the person on trial, or where the meeting was unexpected, and not a case where the person on trial had gone where he knew beforehand, or had beeen told, he would come in contact with the person assaulted, and had armed himself because he knew that by going the road he intended to travel he would himself bring about the meeting. Not that he did not have the right to go this road, but certainly the reason for the persons being at the place could not surprise him when he knew before he traveled the road he would necessarily meet them.

The next complaint is that the court erred in not instructing the jury, at appellant’s request, that if John Hunt or those with him, or either of them, were making an unlawful attack on Clydie Singleton, appellant should he acquitted. Of course, appellant would have the same right to defend against an unlawful attack being made on his sister that he would have to defend against an attack made on him. But, at the time he shot John Hunt, had there been an attack made on Miss Singleton, or did it reasonably appear to appellant that any one was about to make an attack on her? Miss Clydie testified in the case and said: “Ollie Hunt came up to the buggy in which I was sitting and told me to get out of the buggy or she would pull me out and then hit me. This occurred after the shooting.” Again she said: “Ollie Hunt was the one that came up to the buggy when the shooting was going on and jumped on me. The trouble between Ollie and myself took place while part of the shooting was going on; it was after John Hunt was shot.” Appellant testified: “I did not see the fight between my sister and Miss Ollie Hunt. I did not see any part of their fight, and did not see any one parting the girls.” The testimony and all the testimony shows that this difficulty took place after appellant had shot John Hunt; he saw no part of it; and in his testimony, nor any other testimony in the record, is it even suggested that, in firing the first shot he fired, he did so because •he thought or believed an assault had been made, was about to be made, or that she was in any wise in threatened nor in apparent danger. Consequently the court did not err in refusing the special charge requested. We thoroughly agree with appellant “if the evidence for the state, ar the evidence offered in behalf of the defendant, or the evidence taken as a whole, raises a defensive issue, it should be submitted to the jury”; but in no line of testimony in the record before us is it even suggested that appellant in shooting did so in defense of his sister, and it is, as it appears to him, that defense of any character is predicated. In Mitchell v. State, 38 Tex. Cr. R. 170, 41 S. W. 816, this court said: “On a trial for murder where, from defendant’s own testimony, it appeared that he fired upon deceased solely to prevent deceased from killing him, it was not error for the court to fail to charge upon his right to kill if deceased was attempting to take the life of his friend, and especially so where, if deceased was making such attack” on his friend, he “did not see it.”

Appellant complains that Dr. Moses, after describing the wound on the day he was called to examine it, was permitted to testify: “The first thing he suffered from when I was called in to see him on July 6, 1913, was hemorrhage, shock, and weak pulse, and all the symptoms that go with hemorrhage, such as cold extremities and weak, fast pulse, accelerated breathing, due to bleeding into the plural cavity pressing on the lung, together with the effects of trauma or tearing which would cause pain. That was his condition when I saw him the first time and also when I saw him the second time. When I saw him in August, 1913, he was suffering from the effect of infection-; he had developed quite a large collection of pus between the lung and chest wall; that was pressing on the lung, and causing rapid respiration; his' breathing was interfered with, and he had considerable fever, and his pulse was fast, due to the fever and the effects of weakness.” The court, in approving the bill, says: “Questions by the state which called for the testimony set out in this bill were at first excluded by the court upon the objection of the defendant; afterwards, during his testimony, Dr. Moses testified that he would not state that the wound was such as might probably result in death. The state then renewed the question as set out in the bill, and the objection was then overruled.” After the doctor had testified that he would not state that the wound was such a one as might probably result in death, the evidence was admissible on the issue if appellant was not guilty of assault to murder whether the wound was of the character to call for a charge on aggravated assault or simple assault. This testimony shows the bullet did inflict serious bodily injury, and the court submitted aggravated assault in his charge.

The only other criticism of the charge of the court made at the time same was submitted to appellant’s counsel is that the charge is erroneous in that it “did not present the issue as to defendant’s right to act upon insulting conduct and words of John Hunt and those acting with him towards and concerning Clydie Singleton, which should be submitted as to the issue of reducing the offense to aggravated assault.” In the brief it is submitted that as witnesses had testified that J. W. Hunt said “the one who wrote a certain card was a wolf,” and this referred to Miss Clydie Singleton, this raised the issue of insulting conduct towards and concerning a female relative. J. W. Hunt was not present on the occasion of the shooting, did not participate in any manner therein, and any language he might have used (he denied using such language) could not be attributed to his children, nor to any person present on the occasion of this shooting. And then again the term “wolf” would not be statutory, adequate cause, but would be a circumstance to consider along with other circumstances, if any, to be considered by the jury, and the court instructed the jury: “You are instructed that any condition or circumstance capable' of creating, and which does create, sudden passion, such as anger, rage, sudden resentment, or terror, rendering the mind for the time incapable of cool reflection, whether accompanied by bodily pain or not, may be adequate cause; and, whether such adequate cause existed for such sudden passion (if any there was), it is for you to determine; and in determining this question, as well as all other matters before you, you will consider all the facts and circumstances in evidence in this case.” In connection with this charge the court instructed the jury that, if appellant “was by some adequate cause (as herein explained) moved to such degree of anger, rage, sudden resentment, or terror as to render him incapable of cool reflection,” he would be guilty of aggravated assault only. Thus presenting the issue in as favorable light as the evidence called for.

It is shown by another bill that Dr. W. H. Moses was sworn to testify while the defendant was in an adjoining room consulting 'with his lawyers. Judge Richard Critz testified that he was of counsel for appellant; that, during a recess of court, appellant and ■his counsel stepped in the judge’s room to consult; that upon the reconvening of court, as he. returned to the court, Dr. Moses was taking his seat as a witness and was then sworn as a witness; that appellant was not in the courtroom at this time, and he stepped to the stenographer and asked him to make a note of this fact, and, as he was giving these instructions to the stenographer, the defendant came into the courtroom. He further testified: “The matter of the witness being sworn while the defendant was in the private office of the district judge was not called to the attention of the court, and no request was made that the witness be resworn. The judge’s private office is situated across the hall from the entrance to the courtroom, but a person in that office could not hear the witness or anybody else sitting on the witness stand. I knew at the time that the defendant was not present when the witness Moses was sworn. I don’t remember whether the doors were open or not. I did not call the attention of the court or counsel on the other side to the fact that the witness was sworn while the defendant was out of the courtroom; I was not trying the state’s case. I did call the stenographer’s attention to the matter by requesting him to make a note of the fact. I want to state further that, when the defendant came into the courtroom again, I he passed right in front of the state’s counsel and in full view of them; I don’t know whether they saw him or not, but I know he passed right along over there (indicating), and came over here and took his seat.” It being apparent that the only proceedings had during the absence of appellant was administering the oath to Dr. Moses, and the matter was not complained of until in the motion for new. trial, it presents no error.

The court in his charge fairly and fully presented every issue raised by the testimony, while the testimony is seriously in conflict, that offered by defendant showing that he acted in self-defense, while that offered by the state makes a case of assault to murder; and under such circumstances, no error being presented by the record, the judgment must be affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this case, in -which he reiterates every ground in the -motion for new trial, but 'in. an able and exhaustive argument filed he presents only one question (that is, the court committed reversible error in permitting the-I-Innts and others to testify that they had gone to the back of the garden to repair the-fence), appellant’s insistanee being that their reason for being at this point was wholly unknown to appellant; and under the rules of law announced in Brumley v. State, 21 Tex. App. 222, 17 S. W. 140, 57 Am. Rep. 612; Ball v. State, 29 Tex. App. 107, 14 S. W. 1012; Clay v. State, 44 Tex. Cr. R. 129, 69 S. W. 413; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138; Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. 1122; and Bradley v. State, 60 Tex. Cr. R. 399, 132 S. W. 484 — this testimony was inadmissible. Counsel for the state has also filed an able argument in the case. As is to be expected, counsel in their respective briefs state the evidence from the viewpoint of each, and present a wide divergence. We arp supposed to be wholly unbiased, and to take a reasonable view under all the testimony adduced, and state such deductions as naturally arise from the entire record; therefore we cannot adopt the statement of the case as made by either of them. George Hunt and others testified that he and bis brothers were at George Hunt’s house that morning, and that his wife came in and informed him that cattle had broken the fence and gotten in the field and eaten some corn and a part of the garden vegetables, and that he and John and Raymond Hunt had gone there to fix the fence. That while they were there Sank Hunt and Jack ILangley drove up. The state also introduced evidence showing that the fence was fixed. Appellant objected to all this testimony. The court, in approving the bill, says the only objection made to the testimony was that it “called for a statement of facts which occurred in the absence .of the defendant; that other grounds of objection stated in the bill were not made to the court, and have no place in tlie bill.” It is thus seen that tbe objections now so vigorously urged in tbis court were not made at tbe time tbe testimony was offered in tbe trial court, and for that reason tbe bill would present no reversible error, for, if that was all tbe objection offered, tbe testimony over bis objection would be admissible, as stated by tbe court, as shedding light upon who began tbe difficulty. Hunter v. State, 59 Tex. Cr. R. 447, 129 S. W. 125. But if we consider all tbe objections now urged by appellant to tbis testimony, to wit: “Because to admit such evidence to go to the jury would be to create tbe impression on tbe minds of tbe jury that tbis defendant was being tried upon the real facts and circumstances, and not on tbe facts and circumstances as they appeared to the defendant from bis standpoint at tbe time of the difficulty, and would be prejudicial to tbis defendant, for tbe reason that it would be allowing tbe jury to have and consider as evidence in tbe ease and against tbis defendant matters' and things that could not and were not known to him before and at the time of tbe difficulty, and would be charging tbe defendant with reason and motive locked up in tbe minds of others that could not be known to this defendant.” To get a correct view of tbis matter, we must consider tbe testimony adduced on tbis trial.

Coley Fisher, a witness for tbe defendant, testified at bis instance: “I passed by George Hunt’s place that morning in going from my home to Mr. Singleton. When I passed George Hunt’s on my way over to tbe Singleton bouse that morning, I saw Charley Hunt and some one whom I did not know on tbe gallery; Charley Hunt was tbe only one I recognized. Charley Hunt is George Hunt’s son, but I don’t know bow old be is; I suppose be is about 16 or 17 years old. I saw four or five persons at George Hunt’s when I passed there going to tbe Singleton place. I believe I said something to Audie Singleton with reference to seeing those parties there at George Hunt’s; I said something to- him about a crowd being there, or what was tbe matter there, or something of tbe kind.” Then on cross-examination be testified: “I said that in going over to tbe Singleton’s I passed by George Hunt’s place that morning. I saw Charley Hunt out close to the lot, unharnessing a horse, but could not tell who tbe rest of tbe people were that I saw up there. I saw three or four or five men there; I just noticed them when I passed there that morning; and I asked Audie Singleton something about tbe crowd being down there. . I did tbis because I didn’t know but what there might be something tbe matter; I didn’t know bow it came that so many people were up there at tbe Hunt bouse.”

Obed Baker, another witness for defendant, testified: “I was present at tbe difficulty. When I left home that morning I went up to the Singletons to bring Miss Lydia Singleton to church, and in going up to tbe Singletons I went tbe road which passes by George Hunt’s place. I saw several parties, men and women, on the porch at George Hunt’s bouse when I went by there. I would think that there were six or seven people present at George Hunt’s place when I passed, but I did not count them. It was somewhere between 10 and half past 10 when 'I passed George Hunt’s house. After passing there, I went to Mr. Singleton’s bouse, and when I got there I bad a conversation with Audie Singleton, who met me out at tbe lot and asked me whom I had seen, or whether I bad seen anybody down at Hunt’s and I told him I had seen a crowd down there, and told him where they were.”. On cross-examination he testified: “When I first got there, Audie met me out at the lot which is about 25 yards north of the house. Nobody was with him when he talked to me out there. He did not ask me anything out there at the lot except whom I saw at George Hunt’s, and I told him I saw a crowd down there. , I know that there are a good many Hunts around there.”

Defendant himself testified: “Just before Coley Fisher went into the house, or after he had been in the house, he asked me if there was something the matter at the Hunts, or what that crowd was "doing there. I told him I did not know anything about it, and I asked him a few particulars. He then said that he saw a crowd out on the porch down at Hunt’s. When Obed Baker came up, I was out at the lot, and I stopped him there, even with the lot, and asked him if he had seen anybody down at George Hunt’s, and asked him about the crowd, and where they were, and all about it; he told me that he had seen a bunch there on the porch, the same as Fisher had told me. On the Saturday before Russell Riley was talking with me at Liberty Hill with reference to the Hunts; he was telling me about going down to old man Wesley Hunt’s to see that post card, and telling me something concerning the conversation they had had; he told me that the Hunts were mad at me, and that I had better watch out, that he was afraid we were going to have trouble, and this, that, and the other. I don’t remember all he did tell me. I thought from what he told me that the Hunts were mad at me; and, while I really did not think that there would be any trouble, still I was watching for it too, expecting it, kinder. On the Saturday before this trouble, while I was at Liberty Hill, August Miller told me about John Hunt trying to borrow his knucks to give me a whipping with. He told me that John Hunt came to him and asked him if he had a pair of knucks, and that he (Miller) told John that he did not have a pair of knucks, but had one knuck, and John Hunt told him to bring it back to the thrasher, where he was hauling oats to have thrashed. So when he (Miller) got back, John Hunt came to him and asked him if he had brought the knuck, and lie told him he had not. Miller also told me that John Hunt had said to him that he want- ' ed to wort my head over with the knucts. Tom Murray told me that he was with Russell Riley when Riley went down the road to Wesley Hunt’s, and told me something concerning their fuss. Riley told me that the Hunts were mad at me about a post card that had been sent to Ollie Hunt, and that the Hunts were going to get on to me the first thing I knew, and for me to watch what I was doing, or something like that. My mother told me about hearing the Hunts talking over the phone; she said she heard them ringing for Bud Hunt to come over and bring his boy; that they were going to have some fun just before church time. I think my mother told me about this the evening before I had. the trouble with the Hunts. George Maness told me that on Friday, July 4th, at the picnic at Liberty Hill, he had been with two of Mr. Baker’s girls, and had taken them home that evening, and, as he passed back by George Hunt’s place, Jack Langley came down the road and stopped him, and asked him (Maness) if he or any of the Singleton’s had sent that post card to Ollie Hunt, and Maness told him they had not, and that then Jack Langley made some, sort of a remark about it, and used some curse word; that about that time Charley Hunt came down the road, and said: ‘We are going to have a cleaning up;’ and Jack Langley said, ‘Yes, we are going to get hold of Audie the first time we see him down the road,’ or some remark like that.” He said this was all that he had heard that the Hunts or any of them had said about him.

The record discloses that appellant was with the Hunts on Monday or Tuesday before the shooting; that he was with them again on Wednesday or Thursday before the shooting, and some of them helped him load his wagon; that he saw a portion of them at the picnic on Friday before the shooting took place on Sunday, and at all these times the conversation was friendly. However, he claims to have heard all these threats on Saturday. He said, before leaving home on that Sunday morning after he had harnessed his horse, he went in the house and got his pistol, and put it in his pocket. That it shot 38 Winchester cartridges and could shoot six times. He then says he got in his buggy and drove down the road that he knew would lead him by where he had been informed the “Hunts had gathered,” saying: “The reason I did go-, by there in spite of the fact that 1 was expecting trouble was because I had business-’goifig that way; it was a public road, .and: I, had a right to travel that Way.”

Thus it is seen that appellant himself and' two of his witnesses say he knew before he left.home that the Hunts had gathered at George Hunt’s place; that he says he armed ■ himself bécause of that fact and went the, road by George Hunt’s in spite of the fact he was expecting trouble. Then how could the fact that the Hunts were together be said to be a matter not known to him, or that they were on George Hunt’s place be said to be unknown to him? It is true he had. beén told they were at the house on the gallery, and he got in his buggy to deliberately drive by there notwithstanding he says he was expecting trouble, for he says he had a- right to; but how could the fact that they were at the back of the garden instead of on the gallery have changed the appearance to him from his standpoint, and the further fact that they had fixed the fence be an undisclosed motive, such as would affect his right of self-defense, as viewed from his standpoint? The law is, as contended by appellant, that if one unexpectedly meets his adversary, and from his acts and conduct at the time, viewed in the light of previous threats, leads one to believe his life is in danger, such acts and conduct in the presence of defendant cannot be explained by facts unknown to him, but the facts in this case present no such state of case. He says that they were sitting on the grass when he drove up; then how could the fact that they had fixed the fence prior to that time affect, in the least his viewpoint? He says that he had been informed that morning that the Hunts were together; then he knew that fact before he went near George Hunt’s place. What act or conduct of the Hunts or either of them was done or said in the presence of appellant that was sought to be explained? None. Did the fact that they had repaired a fence tend to explain or tend to make appearances different to defendant than if this testimony had not been admitted? No testimony was admitted that could be said to be unknown to appellant other than that they were at the back of the garden instead of being on the porch at the house; and this fact in and of itself, if nothing further had taken place, could or would not furnish a defense to shoot John Hunt None of the cases cited by appellant have any application to a state of facts similar to the facts adduced on this trial.

. In the Bradley Case, supra, it was a case where appellant met the deceased at an unexpected place, his son having a gun, and it was held error to permit the state to prove that they had gone to hunt the cows and the son had carried the gun to shoot an owl. There is nothing in the record to suggest that the appellant, in traveling the road he did, knew he would meet the deceased; and if meeting him, if his son being armed, and if from their acts and conduct on that occasion he was led to believe his life was in danger, it was correctly held, under the authorities, that the purpose in. carrying the gun. could not be- shown to be an innocent one.

Im the Darnell. Case, supra, the evidence discloses that Masters, the injured party, there having been a misunderstanding between him and Darnell, walked up to Darnell, and put his hand on his shoulder, and said, “Mr. Darnell, what about — ” when the appellant shot. The witness was permitted to detail what he had intended to say, which would show an innocent intent in his acts and conduct, when, from the past occurrences, appellant had a right to view the matter differently. Thus it is seen it was acts and conduct done in the presence of defendant that was sought to be explained away.

In the Pratt Case, supra, appellant had testified that deceased had told him he was coming to the store next morning and break his neck; that, when he saw him coming, from his acts and conduct he thought deceased was going to do him violence. It was held error to permit the state to show that he was on his way to see Medlin for an innocent purpose, of which appellant was unaware.

Under the facts in the Clay Case, supra, it has no application to a ease of this character. There is nothing testified to about an undisclosed motive, and would have no bearing on the issue of self-defense, nor who began the difficulty. It was testimony that tended to support nor disprove no issue in the case. The case was reversed on the ground that the court erred in submitting the issue of provoking the difficulty.

In the case of Ball v. State, 29 Tex. App. 107, 14 S. W. 1012, the opinion says the appellant invoked the doctrine of apparent danger, and his right to act upon it as it appeared to him. The appellant testified that deceased had threatened him, had insulted him on the streets, and had tried to run him out of town; that a few hours before the killing deceased had threatened to horsewhip him. The appellant worked in the Hesperian office, and was standing near that office when deceased came out of the newspaper office and began cursing him and struck at him, when he shot. The state’s case was that the deceased came out of the newspaper office and started towards the post office and when he reached a point in front of defendant he stopped, but made no hostile demonstration. It is thus seen that deceased had gone to the office of defendant; after haying made threats to horsewhip him that day, besides other threats, and on coming out of the office, when he saw defendant, he stopped directly in front of him, if he did no more, but according to defendant’s testimony he cursed him and struck at him. Under this state of facts, defendant had a right to believe that deceased was then in search of him, having gone in the office where appellant stayed, and it was held to be error to permit his wife to state when he left home he ‘‘told her he was going to the post office and would be right back,” thus making his mission innocent, when the facts in the case show appellant would have the right to believe that he was in search of him (appel-. lant) to carry out the threat.

In the Brumley Case, supra, the evidence showed that a horse belonging to appellant Brumley had been killed; that a complaint had been filed against one Williams, who was related to Isaac McAdams, who was after-wards killed. At the trial McAdams had a difficulty with the stepson of Brumley and accused him of swearing a lie. He also threatened Brumley’s life, saying that he would cut his heart out, chew it up, and spit it out. Brumley applied to the justice to have McAdams placed under a peace bond, but it was not issued. A few days thereafter Brumley was at his home, when McAdams came riding up; that Brumley spoke to him, saying “Good morning,” when McAdams said,

“You are a d-nd thief, and I believe you killed your own horse,” and started to throw himself off his horse on the opposite side to Brumley, when Brumley shot him. The state introduced evidence that instead of going to Brumley’s house to renew the difficulty, as it would reasonably appear to Brumley, McAd-ams was in fact on his way to his brother’s house to borrow a wagon, a fact unknown to appellant. Held, error. The court in that case laid the law down as follows: “It is a general rule that: ‘In cases where it is material to inquire into the demeanor, conduct, and mental feelings of an individual, at a particular period, the declarations made and the expressions used at the period in question are in their nature original evidence. * * * Yerbal and written declarations are often said to be admissible as a part of the res gestse. As such they are most properly admissible when they accompany some act, the nature, object, or motives of which are the subject of inquiry. In such cases, words are receivable as original evidence, on the ground that what is said at the time affords legitimate, if not the best, means of ascertaining the character of such equivocal acts as admit of explanation from those indications of the mind which language affords.’ 1 Phil, on Ev. Cowan & Hill’s Notes (3d Ed.) 1859, pp. 181-185. * * * It is a rule not only statutory, but of almost universal acceptation, that a party may act upon reasonable appearances of danger, and that whether danger is apparent or not is always to be determined from the defendant’s standpoint. * ® * Now in this case it was immaterial, so far as defendant’s rights were concerned, what were the motives of the deceased Mc-Adams in coming to the house of defendant on the fatal morning of the homicide; that is, it is clearly immaterial whether his mission was a peaceable one, to wit, going to his brother’s for the purpose of getting a wagon. Such motives and intention could not possibly have affected defendant’s conduct, because the evidence shows that they had never been communicated to him, and that he' was wholly ignorant of them. He should not be held in any way bound by such undisclosed motives and intentions, and, so far as he was concerned, they could not throw any light upon the immediate transaction.”

To the rule of law as laid down in this case, we give our assent, as stated in the original opinion, but the facts in this case do not bring it within the rules of law as thus announced. McAdams had gone to Brumley’s home, after threatening to cut his heart out, and by his acts and conduct would lead one to believe that he was about to execute his threat, and, if he in fact was going to his brother’s, it was unknown to appellant. In this case John Hunt had not.gone to appellant’s home, but appellant had come to where he had been informed the Hunts were that morning, each and every one of the Hunts living on that farm, as appellant admits he knew, and in each and every one of the cases cited by appellant is where the deceased had gone to where he (the deceased) knew he would likely meet the appellant, and not where the appellant had gone where he knew he would meet his adversary, and had armed himself for that reason, unless it be the Bradley Case, supra. However, it appears that in that case the state was allowed to explain why one of the Tuckers had a gun; that he had it to kill an owl, when appellant had testified that the father had just called the boy with the gun, saying, “Come on, Jim,” at the time he picked up a stick to assault him, and this was held to be erroneous, because it was proper for the jury to pass on the case as it appeared to him at the time. In this case appellant testified John Hunt had a gun, but no witness sought to explain why John Hunt had a gun, if he had one. No explanation was introduced of any act or conduct or word spoken in the presence or hearing of the defendant, and the facts in this case bring it squarely within the rule announced in the case of Bozanno v. State, 60 Tex. Cr. R. 507, 132 S. W. 777, wherein this court held: “The first is that the court erred in permitting the witness Mr. Albert Dunlap, over the objection of defendant, to testify as to' the movements and actions of the deceased, Denny Harris, on the day of the homicide and prior thereto, because said actions and movements were not in the presence of appellant, and there was no testimony showing that he had any knowledge of said actions and movements of Denny Harris, and appellant could not be charged with the knowledge of such movements, and the causes thereof. This witness testified in substance that deceased left her house about 11:30 o’clock the morning he was killed; that he came by where she was stopping with her daughter; that he had a lead horse; that he stated he was going out to George Foreman’s to take the horse there; and that he was going to the next house to get a saddle. This, it appears from the statement of facts, was objected to for the reason that appellant was not present, and the movements of Harris on that day cannot be charged to him and is no evidence against him. The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations, and intentions of a decedent are held not to be admissible against a defendant,', who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could he held to he hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent. It can have, we think, no application to such a case as this, and the objection is wholly untenable.”

It is true that self-defense was not an issue in that case, but it will be noted that the court holds that it is “where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him, which might, if the rule permitted it, be shown to be in fact innocent.” We agree that the authorities from the Brumley Case, supra, on down to the present time, all hold that “such apparent hostile movements” of the deceased, judged of 'from defendant’s viewpoint at the time, cannot be .explained away by showing them innocent and void of intention to give offense, if such was unknown to the defendant at the time. But, as before said, no evidence was introduced or sought to be introduced that would tend in the least to explain or show any act, word, or conduct of John Hunt, or either of the others with him, which was said or done in the presence of the defendant in this case, was with an innocent intent. The fence had been fixed before he arrived on the scene, he says, and they were sitting down talking; he knew they were together that morning on George Hunt’s place, if his testimony and the testimony of his witnesses Fisher and Baker is to be believed, and no one disputes them on this point. No testimony was introduced showing why Jack Langley had his pistol, and no one explained why the Hunts or either of them had a gun or pistol, if either of them had one. The fact that John Hunt, or either of the other Hunts, had a weapon of any character is denied emphatically by all the witnesses introduced by the state who were present, and they say that John Hunt and his brothers were in their shirt sleeves and had nothing in their hands. It is true that appellant and some of his witnesses say that John Hunt had a gun in his hands, but other of his witnesses, who were present at the time, would not testify that he had a gun on that occasion. Appellant also claims that he saw George Hunt with a pistol after he fell, while his two sisters and all his witnesses say that George Hunt was not armed; hut, if either George Hunt or John Hunt had á gun on that occasion, the state did not seek to introduce any evidence to explain why they had the guns.

As to threats made to do appellant serious bodily injury, we have hereinbefore copied what appellant says was told him. He says that George Maness had told him that Jack Langley and young Charley Hunt had said that his sister wrote the card, and they would “get hold of Audie (appellant) the first time he came down the road.” He introduced Maness as a witness, and Maness says that he asked Langley and Charley Hunt if they believed the card came from the Singletons, and they said they did not, and this is what he told appellant, and they told him nothing about them going to get hold of him the first time he came down the road. Thus, instead of proving such a threat had been made or communicated, his own witness, introduced by him to prove up this threat, says that, instead of accusing any of the Singletons of sending the card, Langley and Charley Hunt stated that they did not believe it came from Mr. Singleton’s and all they said was about whoever sent the card to Miss Hunt, and this is all he told appellant.

In regard to the threat that John Hunt was trying to borrow brass knucks from the negro A. C. Miller, and has said that he wanted to work his (appellant’s) head over, John Hunt denied making any such statement, and that he had sought to borrow any knucks, but the negro testified that John Hunt had tried to borrow the knucks from him, and had said that he wanted to put a new head on Mr. Singleton; but on cross-examination the negro admitted that at this time appellant and John Hunt were in the field at work together, and they had no fuss that day, and Hunt did not claim that appellant had done anything to him. It was also shown that, after this alleged conversation, appellant and John Hunt and some of his brothers were working together with some oats, all of which facts were known to appellant before the shooting.

The only other threat is the one that he says Itussell Riley told him; that he was down at old man Hunt’s, and they had talked about the post card, and the Hunts, were mad at him, and that he had better watch out. Appellant called Russell Riley as a witness, and he said he went down to Mr. Wesley Hunt’s to see about the card, as his brother’s initials were signed to it. That Wesley Hunt had said he believed the Singletons had written it, and whoever sent it was a low-down cowardly wolf and had to eat it. That this is what he told appellant. Wesley Hunt was the father of John Hunt and George Hunt, and was not present when the shooting took place; neither was John Hunt present when the remark was made about it. However, Wesley Hunt denies making any such remarks. Thus to put it in the strongest light for appellant, as the testimony he offers makes, was that Wesley Hunt, the father, had said that the Singletons wrote the card, and they had it to eat, and he was not present when the shooting took place, that Jack Langley and Charley Hunt had made unkind remarks about the one who wrote the card, at the same time saying that they did not believe the Singletons wrote the card, and that John Hunt had tried to borrow some knucks, saying he was going to put a new head on appellant; yet appellant know before the shooting that, when it was claimed this remark was made, he was at work with John Hunt in the field, and no unkind words of any kind were spoken, that he was there on the Hunt farm, and no effort was made to do him violence, that at the 4th of July picnic (on Friday before the shooting on Sunday) he had seen some of the Hunt boys at the picnic and no unkind word was spoken; and these are all the threats he claims were ever made or communicated to him. He had been with them three times that week, going to Georgetown in a buggy with one of them, and meeting them twice when John Hunt was present, as well as several of the others, and they were all friendly on these occasions.

AVe have written at length on this motion for rehearing, because of the insistance of appellant, and the able argument of his counsel, but we cannot and do not agree to the conclusions as to the facts shown as stated by them in their argument, and, instead of drawing our own deductions from the record, we have been careful to state what the witnesses’ testimony in their own language was, and, under the evidence in this ease, we hold that, while the rules of law as stated in the Brumley Case, supra, have always been followed in this court, they have no application to the facts in this case, but under the evidence the case comes peculiarly within the rules announced in the case of Bozanno v. State, 60 Tex. Cr. R. 507, 132 S. W. 777, hereinbefore cited and quoted from, and the motion for rehearing is overruled.

And, while perhaps it is unnecessary in tills case, we will say in this connection that if one of the issues in a case is, “Who began the difficulty?” if the evidence does not tend to explain away any hostile acts, movements, or words of the deceased in any case, but their weight and tendency would only bear on who began the difficulty, such testimony would be admissible on that issue alone, but would not be admissible if the appellant relied on suefi as hostile acts and conduct of the deceased, in the light of previous threats and conduct, to show that it reasonably appeared to him at the time, from such acts and conduct, that his life was in danger, and for this reason he shot.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: DAVIDSON, J. PREND1DRGAST, P. J., and HARPER, J. PRENDERGAST, P. J. DAVIDSON, J. PRENDERGAST, P. J.

license: Public Domain

text:
    TAYLOR v. STATE.
    (No. 3052.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 13, 1914.
    On Reforming Sentence, May 27, 1914.)
    1. Witnesses (§ 330) — Cross-Examination— Impeachment.
    Where accused, on his preliminary examination, testified that he killed decedent solely because decedent called him a vile name immediately before the killing, and on the trial his wife testified that decedent had, on the night before the killing, insulted her, and that she had told accused of it that night, the state, on her cross-examination for purposes of impeachment, could show that decedent had previously insulted her, and that she had not told accused of it, and could ask her whether she had told a third person that she did not know why accused killed decedent.
    [Ed. Note. — For other cases, see. Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    2. Witnesses (§ 379) — Cross-Examination— Impeachment.
    Where the state, for the purposes of impeaching the wife of accused, who testified that decedent had, on the night before the killing, insulted her, and that she had immediately told accused of it, asked her whether she had not told a third person immediately after the killing that she did not know why accused killed decedent, and she replied that she did not think that she used those words, the testimony of the third person that she informed him immediately after the killing that she did not know why accused killed decedent was admissible.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1209, .1220-1222, 1247-1256; Dec.,Dig. § 379.]
    3. Witnesses (§ 268) — PRIVILEGED Communications — Statutory Provisions — Construction.
    Under Code Cr. Proc. 1911, arts. 794, 795, prohibiting husband or wife from testifying as to communications made by one to the other, but that husband and wife may, in criminal cases, be witnesses for each other, a wife who testifies for her husband on his trial for crime is subject to cross-examination like any other witness, except that new incriminating evidence cannot be brought out against the husband, but she can be impeached in the same way and to the same extent as any other witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.] Davidson, J., dissenting.
    Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.
    W. E. Taylor' was convicted of murder, and he appeals.
    Affirmed.
    T. J. Carter, of Somerville, and Hair & Woodward, of Temple, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig.a Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at life imprisonment in the penitentiary.

The facts show that appellant was in the employ of the deceased, Silliman; that he and his wife were boarding at Silliman’s residence, as were several other parties who testified in the case as witnesses. Sil-liman was a lumber dealer and contractor. Appellant was a carpenter, and was employed by Silliman in building a railroad depot. There came friction between appellant and family on one side and Silliman and family on the other, with reference to Silliman’s children. This had occurred two or three times, and the last occasion a day or so before the homicide. On the morning of the homicide Silliman went to appellant’s room, and told him he must leave his place. 'In other words, he must secure another boarding place, and do it at once. Appellant informed , him that he would do so when his month was out. The conversation was emphasized with decided feeling as indicated by the testimony. There is some conflict in the evidence as to what occurred at this conversation. Appellant’s contention was, and his testimony is to the effect, that Silliman said they would settle it outside, going from where the conversation occurred out to his front yard. Appellant, upon Silliman leaving, got his pistol and put it about his person and went out in the yard where Silliman was, and notified him of his arrival. Appellant’s theory of what occurred was that deceased called him a son of a bitch and emphasized the language in which the term was used, and appellant shot twice, one of the shots taking fatal effect. The witnesses differ as to whether the term “son of a bitch” was used by the deceased. That was one of the conflicts of the testimony. There is some evidence also to the effect that at some previous date Silliman had suspended or stopped the work of appellant for a short time, but reinstated him. To use the expression of one of the witnesses, Silliman “laid him off.” This matter seems, however, to have been bridged, and appellant went back to work again. It is also in evidence that appellant had chastised one of Silliman’s children on two different occasions; that this seems to have been done with Silliman’s consent, and there is some evidence showing that Silliman himself told appellant that he would whip his child, and perhaps did do so. Appellant’s wife was introduced, and testified at considerable length about the matters and things occurring with reference to the children, and all the matters that took place while they were boarding at Silliman’s residence. She also testified that on several occasions he, deceased, undertook to take liberties with her person, and finally the evening, prior to the homicide the next morning he renewed his advances to take liberties with her person. She left him hurriedly and rushed' into the room where her husband was. He noticed her. excited condition, and demanded the occasion of her trouble. She declined to tell him, and did not do so until that night after they had retired. She testified that this excited her husband very much, and that he was like a crazy man. Appellant and his wife went to breakfast the next morning; they both ate very sparingly, and in fact they testified substantially they ate nothing. Then the matters previously mentioned, wherein Silliman ordered appellant to leave the place, occurred. This is a sufficient statement of the case to bring in review two or three matters urged for reversal.

A bill of exceptions recites that after the state had closed its testimony in chief, and after the defendant had placed on the stand as witnesses R. G. Clayton and F. O. Kelley, at which time no testimony had been introduced by the state, or the defendant as to any alleged insults haviug been given the wife of the defendant by the deceased, and up to which time no testimony had been introduced touching any conversation Between the wife of the defendant and Rev. M. C. Bishop; that immediately after the testimony of these witnesses his wife was placed upon the stand, and her testimony is given in detail, covering several pages of the bill of exception. In her testimony she narrates the insulting conduct of the deceased, none of which she informed her husband, however, except as to what occurred the evening before the homicide. After all this testimony on direct examination, the state then took her on cross-examination, and all this occurred, the bill narrates, before the defendant had himself taken the stand as a witness. While she was testifying on cross-examination, one of the prosecuting counsel asked her whether or not she had telephoned for Rev. M. C. Bishop, a Baptist minister, soon after the killing to come and see her. She answered this in the affirmative. The bill narrates: “I will ask you to state if it is not a fact that as soon as he came'into your room where you were, if he did not say to you: ‘Mrs. Taylor, this is awful. Isn’t this awful?’ and you said ‘It certainly is, and I don’t know why my husband killed Mr. Silliman.’ ” Appellant urged various and sundry objections to this testimony as to its materiality, a collateral matter, and an inquiry about a subject which was not inquired about on the examination by counsel for the defense, and the witness was the wife of the defendant on trial, and that it is a matter, if it did occur, which involved hearsay as to what some other party said, and because such an answer would be an expression of an opinion of a witness. The court overruled all these objections, and the inquiry proceeded. Her answer was: “I don’t remember whether I said those words or not.” And the court permitted, over the same objections of the defendant, the state to ask, and required the witness to answer, certain other questions in reference to the same subject-matter, which is as follows: “Those are the words I want to ask you about. You can state one way or the other if you did not tell the Baptist minister in substance those words? A. I remember saying to him, ‘It certainly is;’ when he asked why Mr. Taylor did it I could not tell him why. Q. Did you not tell him that you did .not know what the cause was or why? A. No, sir; I don’t remember that I said anything of the kind.' I don’t remember' what I said. Q. Will you say that you did or did not say that? A. I don’t remember.. I do not think that I used those words. I was so excited myself. Q. You would not say one way or the other about it? A. No, sir. Q. The Baptist preacher is named Bishop? A. Yes, sir.” The objections were again urged and overruled. The court qualifies this bill as follows: “The witness had in the first of her cross-examination stated that she did say to Mr. Bishop, the Baptist preacher, that she had no idpa why her husband killed Silliman. She had further stated that she did know that defendant killed deceased because he had insulted her. This testimony was without objection.” The bill 'of exceptions and this qualification are at variance, and the.bill of exceptions seems to-be taken from the stenographic report.

Another bill recites that before the defendant had testified in his own behalf, and after the wife of the defendant had testified as follows, and then sets out her testimony again as in the previous bill, covering quite a number of pages, and which bill of exceptions recites that this was all of her testimony upon direct examination, as does this bill, and after the said witness was turned over to the state for cross-examination, and after she had testified in answer to questions by the state that she had told her husband about the insults that night after they had retired, and after she had testified that she did not tell him that night about but one insult, the state asked her why she did not tell him about the others, and she replied, “Because I didn’t do it,” and she was asked, “Can you give any reason why you did not?” She replied, “I thought once was enough.” ‘You thought once was enough?” “I thought it was.” The-state then propounded the following questions: “When did you tell your husband about the other two insults? A. I did not tell him about the other two.” Then the following question was asked by the state: “You never told your husband until you told it now upon the stand, you never told your husband about the other two until you told it in his presence now?” A great number of objections were urged to this, among others, that all this occurred while appellant was in jail from the time of the shooting until the present time; that the witness is the wife of the defendant, and that this question is about a matter which was not inquired about by the defense on her examination in chief, and not germane to anything asked witness during her examination in chief, that it involves and concerns what occurred between the husband and wife after the husband was arrested, and that the same is forcing the wife to become a witness against the husband without his consent.” All of this was overruled by the court, and the witness answered, “No, sir.” The bill then further recites that the court permitted, over the same objections, the following questions, and answers of the witness by the state: “You are sure about that? A. I have not had a chance to talk to my husband ■but very little. Q. You have talked with him? A. Very little since I came back to Caldwell. Q. You have talked with him several times? A. Yes, but I say I have not talked with him very much. Q. It would not take very long to tell him that? A. Why should I tell him? once was enough. Q. When did you tell these gentlemen (indicating counsel for defense) about these insults? A. I think I have not talked with Mr. Hair very much; have not talked to him very much. Q. The question is, when did you tell Mr. Carter and Mr. Hair about these insults? A. I told them about the insults. I don’t remember when it was. Q. About when was it? A. I don’t even know when that was. When were you here? Q. I want you to testify about when? A. I don’t know. Q. About when? A. About three weeks ago, I think it was, was it not? A. I don't know. I don’t remember. Q. You told Mr. Carter about three weeks ago about one insult? A. Yes, sir. Q. You never did tell either of them about the other two insults until you took the stand to-night. A. Yes, sir.” A great many objections were urged, among others, that it was privileged communications, and could not be inquired into by the state, and same had not been inquired about on the direct examination in chief, and was not germane thereto, and the court overruled each and all of these objections. This bill is signed without qualification.

Another bill recites that after Clayton and Kelley had testified for the defendant, and no testimony had been introduced by the state or defendant as to any alleged insults having been given the wife of the defendant by the deceased, and up to which time no testimony had been introduced touching any conversation between the wife of the defendant and Rev. M. C. Bishop, then follows the testimony of Mrs. Taylor, wife of the defendant, covering several pages, and same as in the previous bills of exception, and the bill recites that was all the testimony she gave upon her direct examination. Then the bill further recites that after the witness Ida Taylor, wife of defendant, was turned over to the state for cross-examination, and before the defendant had testified in his own behalf upon the trial of this cause, one of state’s counsel asked her whether or not she had telephoned for Rev. M. C. Bishop, a Baptist minister, soon after the killing, to come and see her, which she answered in the affirmative. Then the following matters occurred : “I will ask you to state if it is not a fact that as soon as he came into your room where you were, if he did not say to you: ‘Mrs. Taylor, this is awful. Isn’t this awful?’ — and you said, ‘It certainly is, and I don’t know why my husband killed Mr. Sil-liman.’ ” Various objections were urged to this, covering a half page of the transcript. They were all overruled, and witness answered: “I don’t remember whether I said those words or not.” And the court permitted, over the same objections of the defendant, the state to ask and required the witness to answer certain other questions in reference to the same matter, which questions and answers are as follows: “Q. Those are the words I want to ask you about. You can state one way or the other if you did not tell the Baptist minister, in substance, those words? A. I remember saying to him,‘It certainly is;’ when he asked why Mr. Taylor did it, I could not tell him why. Q. Did you not tell him that you did not know what the cause was nor why? A. No, sir, I don’t remember that I said anything of the kind. I do not remember what I said. Q. Will you say that you did or did not say that? A. I don’t remember. I do not think that 1 used those words. I was so excited myself. Q. You would not say one way or the other about it? A. No, sir. Q. The Baptist preacher is named Bishop? A. Yes, sir.” Here the objections were again urged and overruled, and the bill recites: “Be it remembered that thereafter, during the progress of the same trial, the state placed on the stand Rev. M. O. Bishop in rebuttal, who, after being duly sworn by the clerk of the court, was asked by the state the following questions: Q. What is your name? A. M. 0. Bishop. Q. You are the Baptist minister here at Caldwell? A. I am. Q. The morning that Mr. Silliman was killed by Mr. Taylor, were you called by Mrs. Taylor, wife of defendant, to her residence — to the Silliman residence — to see her? A. I was. Q. Did you go? A. I did. Q. When you went to that residence did you met her? A. I did. Q. In her room? A. Yes, sir.” All of this occurred in the presence of the jury, and all of which answers went to the jury. The state then asked the following question of said witness: “I will ask you if you said to her, ‘Mrs. Taylor, this is awful,’ and she said, ‘Yes, it certainly is, and I don’t know why he .did it or the 'cause or reason for doing it.’ ” Quite a number of objections, and • practically the same as those set forth heretofore, were urged and overruled, and the questioning proceeded: “Q. You heard the question, what is your reply? A. That conversation took place. Q. Just like I have stated it to you? A. Yes, sir.” Then follows the urging of the objections again. ' This bill is qualified by the court as follows: “In the first part of the witness’ cross-examination she stated without objection that she had made the statement to M. C. Bishop. Later on in the cross-examination she denied doing so as above set out, which was objected to as above set out, and I then allowed this testimony as above set out. The witness had also testified in her cross-examination that defendant killed the deceased because he had insulted her.”

We are of the opinion that these matters were erroneous. The wife had testified to several insults, only one of which she had communicated to her husband. Any legitimate inquiry about this matter would be proper, inasmuch as the defendant had proved before the jury that his wife had communicated to him’ the last insulting conduct. Of course the other occasions of insulting conduct would not affect the defendant, as he had not been apprised of it. The matters occurring between wife and her husband and counsel would be of such a nature,, under the conditions and circumstances of this case, as would not permit the cross-examination of the wife with reference to the matters occurring between them and herself, though her husband was in jail from the time of the homicide or a few moments afterward, until the trial, and any matters that occur between her husband and herself and conversations would be privileged under the statute, and the communications between herself and her husband and counsel in reference to the preparation of the trial or matters of that sort would be also privileged.

With reference to the conversation had between herself and Bishop, it was of such a nature as was not germane, in our opinion, to her testimony that she had communicated to her husband the fact of the insult the evening prior to the killing. Counsel had not asked her as to any conversation between herself and Bishop, or what occurred between them. This was new matter brought out by the state, and could not be brought in as evidence from the wife against the defendant, nor was it the subject of a cross-examination of the wife. This direct question, it occurs to us, was decided adversely to the state in Marsh v. State, 54 Tex. Cr. R., at pages 147 and 148, 112 S. W. 320. The conversation between defendant’s wife and Bishop form no part of the transaction inquired of from appellant’s wife in her original examination. It related to another matter altogether, and was therefore not receivable either for the purpose of impeachment or as a circumstance to be weighed against appellant on her testimony; and it may he further stated in this connection, as in the Marsh Case, it involved, in our judgment, the opinion of the witness as to the killing. See Richards v. State, 53 Tex. Cr. R. 400, 110 S. W. 432; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Washington v. State, 17 Tex. App. 197; Hoover v. State, 35 Tex. Cr. R. 342, 33 S. W. 337; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385; Creamer v. State, 34 Tex. 173; Greenwood v. State, 35 Tex. 587; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Owen v. State, 7 Tex. App. 329; Red v. State, 39 Tex. Cr. R. 414, 46 S. W. 408; Bluman v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027, 26 S. W. 75; Yeiral v. State, 56 Tex. Cr. R. 267, 119 S. W. 848; Stewart v. State, 52 Tex. Cr. R. 273, 106 S. W. 685; Ballard v. State, 160 S. W. 716; Hobbs v. State, 53 Tex. Cr. R. 71, 112 S. W. 308; Hickey v. State, 62 Tex. Cr. R. 568, 138 S. W. 1052; Branch’s Crim. Law, §§ 852, 853-867. Under these authorities we are of the opinion that this cross-examination was too latitudinous and involved matters that were not germane to the witness’ direct examination. Being the wife of the' appellant, the statute, limiting the cross-examination of the wife, prohibited, we think, the state from going into matters discussed.

The judgment ought to be reversed and the cause remanded.

PREND1DRGAST, P. J., and HARPER, J.

We think the testimony admissible, and the case should be affirmed; and it is so ordered. Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21.

On Motion for Rehearing.

PRENDERGAST, P. J.

In order to correctly understand the questions decided in this case, we will briefly state the case and the issues. Appellant was convicted for the murder of W. B. Silliman on August 14,1913, and his punishment assessed at life imprisonment. Appellant and his wife were boarding and had a room at Mr. Silliman’s for some short time prior to the homicide. They had no children. Silliman and his wife had several small children. Prom time to time, while appellant and his wife were boarding and rooming at Silliman’s, appellant abused, struck, and whipped some of Silliman’s children. He thus abused and struck one or two of them late in the evening or early night, prior to the homicide the next morning just after breakfast.- Silliman was informed of the mistreatment of his children. He had .put up with it before, every time it occurred. The next morning just before the killing, he ordered appellant to leave his house. Appellant declined to do so, stating he would not until the end of the month. The evidence indicates that deceased then said to him to come out in the yard and they would settle it. Deceased went on out in the yard, and was standing talking to some friends smoking a cigarette, which he was holding between the fingers of his left hand. He was in his shirt sleeves and wholly unarmed. Appellant went in his room, armed himself with a big six-shooter, secreted it in his clothes about his person, and walked out to where deceased was standing talking 'to others. Appellant was smoking his pipe. He walked up to where deceased was, and said, “I am here now; what do you want?” or “What will you have?” The witnesses differ as to what Silliman then said. There were several eyewitnesses present who heard and saw everything that was then said and done. Several of these witnesses said that Silliman replied that he wanted him to get out of his house, and said nothing more to him. Appellant and two of his witnesses said that Silliman’s reply to him. was “Wtell, I want you to move out of my house, you damned old son of a bitch.” The only difference between the witnesses on this point was whether Silliman said “you damned old son of a bitch.” All of the witnesses, including appellant himself, say that Silliman made no threat, made no motion of any kind to assault, or do appellant any kind of injury. Appellant then pulled his big six-shooter, and at once shot at the deceased, evidently missing him. Pie then removed his pipe from the center of his mouth to one side thereof, deliberately stepped back three or four steps, raised his left arm, rested the six-shooter thereon, deliberately aimed and fired at the deceased, the ball striking him in the left arm, thence through it into the body, and through his heart, killing him instantly. This was in front of Silliman’s house a few steps from his front gallery. Several eyewitnesses, who testified, were on this gallery or standing at or near deceased when he was killed. Appellant at once walked back on the gallery, and' his wife came to him. She and he both testified she said to him, “Why did you do it?” and each testified that he replied, “Because I had to.” Several other witnesses who were present, most of them disinterested, said he replied, “Because I wanted to.”

Appellant had an examining trial soon after the killing. He testified at the time. His testimony was reduced to writing and signed by him. This was proven up, and the defendant himself introduced it on this trial. It is shown thereby that the first thing he testified was: “Of course, I will have to go back and establish a motive, if a motive there be, for this killing.” Then he tells of the trouble with deceased’s children and his whipping or striking them from time to time, and what occurred thereabouts the night before the killing, and that the deceased because thereof the next morning ordered him to leave, etc. Pie further testified, “I killed Mr. Silliman because he called me a God' damn son of a bitch, and that is the sole reason I killed him.” He denied making this statement on this trial, or at least attempted to do so, but in addition to his written signed testimony, which he produced and introduced himself, the state introduced several other witnesses who swore positively that appellant, on the examining trial, swore exactly as quoted above. By his whole testimony at that time there was no intimation that he killed deceased because deceased had insulted his wife.

On this trial appellant sought to reduce the offense, if, any, to manslaughter. He introduced his wife and had her to testify that the evening before the killing deceased insulted her, caught hold of her, attempted to pull, or did pull her into his, deceased’s, room; in effect, proposing or attempting to induce her to permit him to have sexual intercourse with her; that she told appellant of this that night, and that that was the cause of appellant killing the deceased. He testified that she told him of this insult to her by deceased that night, and that was the reason he killed deceased the next morning. She also testified on this trial that deceased had recently twice before insulted her with the same intent and for the same purpose, but that she had not told her husband of either of those insults and had told him only of the one she claimed occurred the night before; that she had told no one else, not even the appellant’s attorneys, nor until she testified on the stand at this time; that she swore she did not tell her husband, in no possible way, was requiring her to divulge any confidential communication, but the very reverse of this.

It will thus be seen that appellant; for the first time on the trial of this cause claimed, and he and his wife testified, that he killed deceased because of this alleged insult by deceased to her the night before. The state contended that her said testimony was false, and undertook to show the falsity thereof by showing and proving by her on cross-examination that she had not told her husband of either of the two previous claimed insults by deceased to her, and to impeach her by showing that at once after the killing she called Mr. Bishop, the Baptist minister, over the phone, to come to see her, and he did so in response to her request, and saw her in her room upon his arrival. She said when the Baptist minister came in her room, he shook hands with her, and said to her, “Mrs. Taylor this is awful.” She admitted that she replied to him, “Yes, it certainly is,” but denied she then said to him, “I don’t know why he did it, or the cause or reason for doing it.” In impeachment of her the court permitted Mr. Bishop, the Baptist minister, to testify that she did say to him at the time, as quoted just above.

The sole question in this ease is whether or not the state, under the circumstances, should have been permitted to cross-examine Mrs. Taylor and have her testify that she told appellant at no time of either of the first two claimed insults by deceased to her, for the purpose of tending to show, and showing, that her testimony to the effect that deceased had insulted her the night before and she had told appellant, was untrue, and that as a matter of fact, deceased had never at any time insulted her, and she.at no time had told her husband he had. And whether the state could impeach her by the Baptist minister, as was done.

Our statute on the subject is:

Article 794, O. O. P.: “Neither husband nor wife shall, in any case, testify as to the communications made by one to the other while married. * * * ” (The latter part of this article does not apply, as this case was not an accusation against appellant of any offense upon her person.)

Article 795, O. O. P.: “The husband and wife may, in all criminal actions, he witnesses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other.”

These articles have been in our Code at least since 1856. They have many times been construed and applied by 'the decisions of this court, and the Supreme Court while it had criminal jurisdiction. By both courts it has always been held that when the husband who is on trial introduces his wife to testify in his behalf, and she does so, she is subject to cross-examination just like any other witness, save and except that new incriminating evidence cannot be brought out against the accused by her, and that she can be impeached in the same way - and to the same extent as any other witness can be.

In one of the first cases where these statutes were construed, it was contended by an accused that the wife could not be thus cross-examined, and that she could not be impeached; the Supreme Court, in Creamer v. State, 34 Tex. 174, said: “We are unwilling to believe that the Legislature intended thus recklessly to strike a fatal blow at the very foundation of all judicial investigation and truth, and at the sanie time to open a wide door to mistakes, errors, fraud, and perjury. The principal, if not the only, object of a cross-examination is to test the truth of the evidence given on the examination in chief, not to elicit new facts, but to criticise and weigh those which have already been given; to sift the truth from error, prejudice, and ignorance, and to present to the court and jury only that which is the true measure of justice and equity. Green-leaf says that the object of a cross-examination ‘is to fully investigate and ascertain the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers ■of discernment, memory, and description, and submit them to the consideration of the jury before whom he has testified, who have thus an opportunity of observing his demeanor and determining the just weight and value of his testimony.’ 1 Greenleaf, 446, 449. See, also, 1 Starkie, Ev. 129. We are unable to see, how a cross-examination of the wife, properly understood, could be construed into testimony against her husband, and more especially if the wife has testified in her examination in chief to nothing but the truth. And if she has testified falsely, then truth, justice, and the law demand that she should be exposed, regardless of the consequences. We are therefore of the opinion that whenever a husband or wife is put upon the witness stand to testify in behalf of the other, he or she so testifying should be subjected to as rigid a cross-examination as any other witness, with the exception only that he or she could not be examined in regard to anything against the other about which there had been no testimony on the examination in chief. This we believe is the true intent and meaning of the statute, and the only one that can .reconcile the law with the principles of truth and justice.” This decision has many times been cited and approved by this court and our Supreme Court. There can be no question but that it announces the correct doctrine and proper construction of said statute. It is as equally well settled that the wife can be impeached as any other witness, and as was done in this case, by a long line of decisions of this court and of the Supreme Court. On both these points we cite only some of them, not all by any means. Shelton v. State, 34 Tex. 662; Hampton v. State, 45 Tex. 154; Swanney v. State, 146 S. W. 549; Dobbs v. State, 54 Tex. Cr. R. 554, 113 S. W. 923; Exon v. State, 33 Tex. Cr. R. 468, 26 S. W. 1088; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Brown v. State, 61 Tex. Cr. R. 336, 136 S. W. 265; Reagan v. State, 157 S. W. 484; Smith v. State, 44 S. W. 520; Crews v. State, 34 Tex. Cr. R. 545, 31 S. W. 373; Young v. State, 54 Tex. Cr. R. 420, 113 S. W. 276; Red v. State; 39 Tex. Cr. R. 422, 46 S. W. 408; Johnson v. State, 162 S. W. 514; Cameron v. State, 153 S. W. 868; Ward v. State, 159 S. W. 278; Northcutt v. State, 158 S. W. 1005; Perry v. State, 153 S. W. 138; Link v. State, 164 S. W. 993; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21. It is unnecessary to discuss the questions, or point out the special holding in each case. They each specifically hold the cross-examination was correct, and evidence is admissible. ,

We have cited some of the same cases that Judge DAVIDSON cites in his original opinion herein in the latter part thereof. None of the cases cited by him, when properly understood' and properly applied, are in conflict with what we hold herein, .and the cases we have cited above, save and except one of them. That case, in conflict herewith, is Marsh v. State, 54 Tex. Cr. R. 147, 112 S. W. 320. In view of the long and uniform holding of this court to the contrary of that decision, it must be that the court in that case misapprehended the question, otherwise a decision, holding as it does on this question, would not have been rendered; but whatever was the cause thereof, it is hereby expressly overruled where it is in conflict with what we hold herein and the decisions we have cited above.

There can be no question, as we see it, but under the statute and the decisions the court committed no error in the matters complained of shown by appellant’s bills to the cross-examination of, nor introduction of the testimony contradicting and impeaching ’ appellant’s wife. The motion is overruled.

DAVIDSON, J.

(dissenting). I cannot agree with my Brethren- in affirming this case. The testimony as to what occurred between the Baptist minister, Bishop, and the wife of appellant subsequent to the homicide in appellant’s absence is not admissible against him either as original evidence or impeaching testimony.

First. It was res inter alios acta.

Second. These were declarations of the wife against her husband.

Third. No part of the conversation between the minister, Bishop, and appellant’s wife was brought out on her direct examination by her husband, and was no part of her testimony nor of any fact brought out by him on her direct examination.

Fourth. It could not be used as original evidence against her husband, by the state. This is not debatable, for it would have been making her a witness for the state against her husband in direct contravention of the statute. See White’s Ann. C. C. P. arts. 774, 775.

Fifth. These declarations could not be used to impeach appellant’s wife under the rule laid down in the Drake Case, 29 Tex. App. 265, 15 S. W. 725. The Drake Case has been followed in all subsequent decisions. I refer to Hickey v. State, 62 Tex. Cr. R. 583, 138 S. W. 1051. See, also, Saunders v. Railroad, 99 Tenn. 141, 41 S. W. 1034.

Sixth. The state could not have used the testimony in making out its case as original evidence. White’s Ann. C. C. P. arts. 774, 775, and for collation of cases see the same work, section 986; Drake v. State, 29 Tex. App. 265, 15 S. W. 725; Hickey v. State, 62 Tex. Cr. R. 583, 138 S. W. 1051; Marsh v. State, 54 Tex. Cr. R. 144, 112 S. W. 320. My Brethren found it necessary, in order to affirm this case, to overrule the Marsh Case. The opinion in that case was written by Judge Ramsey, and is a clear enunciation of the law, and ought not to be overruled; but this case could not be affirmed in the face of the opinion in the Marsh Case. In this connection, she was the wife of appellant, and her testimony could not be used against him.

Seventh. I cannot agree to the statement by my Brethren that the wife is subject to the same rule as the ordinary witness as to cross-examination. This states the rule entirely too broadly, and is in direct contravention of the plain wording of the statute in several respects. There is to be observed under the plain statutory language a wide difference between the attitude of ordinary witnesses in a case to the accused and that sustained by his wife towards him when she is used as a witness. To hold, otherwise would abrogate the statute and render it a nullity. This was so at common, law. The rule has been intensified and broadened under the statute of Texas. The difference between the wife as a witness in her husband’s case , and that of the ordina/ry witness in the same case is so widely different and so distinctly marked that it takes no discussion to-understand the difference. To hold that the wife occupied the same relation to her husband’s ease, when used as a witness, as an ordinary witness would be to sap the very foundation of the law of the state. It is well recognized that confidential communicas-tions betiueen the accused and other parties are not privileged, but between the husband and the wife it is privileged. This is by statute. It is enacted that the wife may not be used against the husband except in cases of violence by the husband upon herself. This rule does not apply to other witnesses, It is so thoroughly well settled that the wife cannot be interrogated in matters other than those brought out by her husband on her examination that it is useless to refer to the-authorities. This is not true as to other witnesses.

For the reasons indicated, I cannot agree to the affirmance of the case, and most respectfully enter this as a summary of my dissenting views.

On Reforming Sentence.

PRENDERGAST, P. J.

In this case the verdict of the jury found the appellant guilty of murder and assessed his punishment at confinement in the penitentiary for life. The sentence, based on this, fixed the punishment specifically at life imprisonment, instead of an indeterminate sentence as required by Act August 18, 1913 (Acts 33d Leg. [Ex. Sess.] p. 4).. In some way this escaped our attention when the case was affirmed and the motion for rehearing overruled. The sentence will therefore be reformed by this court, so that, in. accordance with the said act of August 18, 1913, the punishment of appellant will be assessed at the indeterminate time of not less than five years nor more than for his-lifetime.

The sentence is therefore reformed in accordance with said act, and the clerk of this court is directed to enter the proper sentence in accordance with this opinion and said law,, and certify the same properly to the court, below.