
    FREEMAN v. STATE.
    (No. 6777.)
    (Court of Criminal Appeals of Texas.
    April 5, 1922.)
    1. Criminal law <§=596(3) — Continuance for absence of witness whose testimony would merely have impeached state’s witness held properly denied.
    Defendant’s application for a continuance because of absence of witness was properly refused where the testimony of the witness related solely to the impeachment of the witness for the state.
    2. Homicide <§=163(2) — Testimony as to trouble between deceased and persons other than defendant not admissible in absence of connection between them andi homicide.
    In a prosecution for murder, testimony that deceased had had trouble with persons other than the defendant held not admissible in the absence of some fact connecting such other persons with the homicide.
    3. Criminal law <§=366(4) — Testimony as to what deceased told witness three minutes after homicide admissible as part of res gestse.
    In a prosecution for murder, testimony by deceased’s wife, who had heard the shooting, and had run to wounded husband as to what deceased had told her three minutes after the shooting including the statement that “the old man done it,” held admissible as a part of the res gestee.
    4. Criminal law <§==>361 (1) — Testimony as to manner in which deceased usually referred to defendant held admissible to explain deceased’s statement as to who did the killing.
    In a prosecution for murder in which the wife had testified as part of the res gestee that immediately after the shooting the deceased had told her that “the old man done it,” testimony that the deceased usually called the defendant “the old man” held admissible.
    5.) Criminal law <§=366(6) — Testimony as to statement made by deceased 15 minutes after killing admissible as part of res gestae.
    In a prosecution for murder, testimony of witness who arrived at the scene of the shooting within 15 minutes thereafter as to statement made by deceased held admissible as a part of the res gestae.
    6. Criminal law <§=>45.3 — Testimony comparing tracks made near scene of shooting and those made by defendant held admissible.
    In a prosecution for murder, testimony that witness had measured the tracks leading from the scene of the shooting, and he compared such tracks with those made by defendant, and that in his opinion the track made by defendant and those seen by witness near the place of the homicide were identical, held admissible.
    7. Criminal law <§=>614(1) — Refusal to grant second continuance because of mental and physical condition of defendant held not abuse of discretion.
    In a prosecution for murder of a defendant between 79 and 80 years old, who had secured continuance on the ground that he was not physically or mentally able to undergo the ordeal of the trial, refusal to grant a second continuance on such ground where there was no' reason to believe that defendant could ever be tried if the case was postponed or continued on-account of his physical condition held not an abuse of discretion.
    8. Criminal law <§=722(2) — Prosecutor’s statement that the only way defendant could escape punishment was by lying on a cot held, improper.
    In a prosecution for murder of a defendant who was between 79 and 80 years old, and. who had been brought into court on a cot. where he lay during the trial, in which the court, excluded the testimony of a physician as to his physical condition, the statement of the district attorney that the only way defendant could escape punishment was by lying on a cot held improper.
    9. Criminal law <§=366(6) — Statements made by deceased 30 minutes and one hour after shooting held admissible as part of res gestee.
    In a prosecution for murder, testimony as to statements made by deceased 30 minutes and an hour after the shooting held admissible as a part of the res gestee.
    10. Criminal !aw <§=363 — Rule of res gestee stated.
    In ascertaining whether statements are admissible under the rule of res gestae, the spontaneity of the statement or matter offered in evidence is a test which may be arrived at by a consideration of the surrounding circumstances and the condition of the maker of such statements during the time which had elapsed since the occurrence of the injury.
    11. Criminal law <§=338(6) — Testimony as to statements made by deceased admissible to show rational condition of mind.
    In a prosecution for murder, in which the state attacked the testimony of statements made by deceased after the killing on the ground that his injury rendered it impossible for him to know or understand what he was saying,, testimony as to statements made by him was admissible to show the rational condition of his mind.
    12. Criminal law <§=775 (2) — Evidence sufficient to charge on alibi.
    In a prosecution for murder, in which defendant claimed an alibi, evidence held sufficient to require submission of such defense to the jury.
    13. Criminal law <§=784( I) — Refusal to charge on circumstantial evidence held proper.
    In a prosecution for murder, refusal to charge on circumstantial evidence held proper.
    Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.
    J. K. Freeman was convicted, of murder, and he appeals. ,
    Reversed.
    Dial Melson, Davidson & Brim, and H. C. Connor, all of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State'.
   LATTIMORE, J.

Appellant was convicted in the district court of Hopkins county of murder, and his punishment fixed at 10 years in the penitentiary.

A continuance to obtain the testimony of one York was properly refused. Sufficient reason for this conclusion appears when we state that the testimony of said witness related solely to the impeachment of a witness for the state. No citation of authorities is needed to support a conclusion so well settled as the above. We might add that the diligence to secure the attendance of the witness was insufficient.

Testimony showing that deceased had had trouble with other parties would not be admissible in the absence of some fact reasonably indicating a connection on the part of said other persons with the homicide herein.

Mrs. Grayson, wife of deceased, heard the shooting and ran to where her wounded husband was. She said it could not have been over 3 minutes before she got there. What deceased then said to her would be res gestae. Among other things contained in said statement was one to the effect that “the old man done it.” There was no error in allowing Mrs. Grayson to testify that her husband usually called appellant “the old man.”

Mr. Woods got to the scene of the shooting within 15 minutes thereafter. No error appears in allowing him, as well as Mrs. Grayson, to testify that deceased made substantially the same statement to Mr. Woods as that made to Mrs. Grayson when she first came. The statement made to Mr. Woods was unquestionably res gestee, and this fact would not be altered because Mr. Woods asked deceased who did it.

Mr. Titus measured the tracks leading away from the scene of the shooting and along the route supposed to have been taken by the man who fired the fatal shot. He testified to a certain peculiarity in the track, as well as to his measurement of said track. He also testified that he compared and measured a track made by appellant, and that in his opinion the track made by appellant and those seen by him near the place of the homicide were identical. This was permissible. Mueller v. State, 85 Tex. Cr. R. 346, 215 S. W. 93.

That a doctor was not allowed to testify to the present mental and physical condition of the accused, which testimony was offered to show that he was not mentally or physically able to undergo the ordeal of a trial, would not seem to present anything for our consideration. The accused was an old man, and the case had been continued once on his application for substantially the same reasons as would be detailed by the doctor, and upon a certificate of said doctor. The refusal of the application for a continuance on account of the physical and mental condition of appellant was also made the subject of a bill of exceptions. The statements concerning appellant’s physical and mental condition as set forth in said application for continuance made same appear to be chronic, and without apparent expectation of alleviation or relief. Appellant was between 79 and 80 years of age, and, as stated, the ease had been continued once on account of his condition, and the trial court qualifies the bill of exceptions by saying that there appeared no reason to believe that appellant could ever be tried if the case was postponed or continued on account of his physical condition. We do not think the overruling of said application any abuse of the discretion of the trial court in the matter.

Various witnesses testified to appellant’s strength and his seeming activity for a man of his age, but, in view of the rejection of the testimony of the physician as to his present physical condition, we are of opinion that the district attorney should not have stated to the jury that the only way appellant could escape punishment was by lying on a cot. It appears from the record that during the trial appellant was brought into the courtroom on a cot and lay on one in the courtroom during the progress of the trial.

Appellant introduced in his behalf a physician of experience who saw deceased a little time after the shooting, and gave evidence of a very strong character in support of the proposition that the wound inflicted upon deceased was of such nature as to render him incapable of making connected, coherent, or intelligent statements concerning the shooting. Evidence was introduced by the state showing that about 30 minutes after said shooting, and also about an hour afterward, deceased stated to different parties about the same things that he said to his wife—that is, that old man Freeman shot him, and that he saw him but had no chance to do anything. By various bills of exception appellant objected to the introduction of these statements of deceased. We have carefully considered each- of said bills, but are of opinion that said statements were admissible as part of the res gestae, and also as reflecting the mental condition of deceased after the shot struck him. There is no exact time limit which can be applied to cases wherein the rule of res geste is applied. McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175; Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 101. The spontaneity of the statement or matter offered in evidence under said res gestae rule is the test and this may be arrived at by consideration of the surrounding circumstances and the condition of the maker of such statements during the time which has elapsed since the occurrence or injury. Many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far enough to preclude premeditation and in cases of- this kind we have declined to he limited to any specific time. Tooney v. State, 8 Tex. App. 459; Stagner v. State, 9 Tex. App. 441; Fulcher v. State, 28 Tex. App. 471, 13 S. W. 750; Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720; Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep. 794; Moore v. State, 31 Tex. Cr. R. 236, 20 S. W. 563; King v. State, 34 Tex. Cr. R. 237, 29 S. W. 1086; Freeman v. State, 40 Tex. Cr. R. 545, 46 S. W. 641, 51 S. W. 230; Chapman v. State, 43 Tex. Cr. R. 328, 65 S. W. 1098, 96 Am. St. Rep. 874. Reference to these cases will disclose that statements made at times varying from 20 minutes to a longer period than an hour and a half were admitted as res geste under appropriate surroundings.

We further think that, when an attack is made upon the truthfulness of statements made by the deceased after the infliction of a fatal injury, upon the ground that such injury was of a character as to render it impossible for the injured person to know or understand what he was saying, it would be permissible for the state to prove intelligent and apparently connected statements made by the deceased during said time. It would be as if a witness were contradicted as to statements made by him touching the matter under investigation, and the party introducing him was permitted to support his testimony by prior similar utterances. In this case the state proved declarations made by the deceased a few minutes after he was shot to the effect that appellant was the party who shot him. As contradicting such statements appellant introduced the testimony of the physician above mentioned. As reflecting the rational condition of deceased, we think a statement by him made to a friend some time after he was shot to the effect that he wanted him to get a doctor for him as quickly as possible would be admissible.

Appellant excepted to the court’s failure to charge on alibi, and asked a special charge presenting said issue, which was refused. Jusfwhy the trial court declined to submit this issue is not clear to us. Appellant testified detailing his movements during the morning of the homicide and swore that, after being out in the field with his grandson, and getting some melons, and eating one of them at his house, he took his gun and walked straight south through the field to Mr. Jones’ residence, and was at the Jones residence when he heard of the shooting; that he did not do the shooting and knew nothing about it. Mrs. Jones testified that appellant came to her house from the north on the morning of the killing between 9:30 and 10 o’clock, and left going toward his son Ace Freeman’s home, which was further south from her residence. The trial court may have concluded that the state’s testimony overwhelmingly showed the presence of the appellant at the place of the shooting, and that the testimony in support of alibi was not of sufficient weight or strength to call for a charge thereon, but the authorities in this state are uniform and numerous to the effect, that when called for by the evidence, if a charge on alibi is refused, and such refusal excepted to, and especially when a special charge presenting the issue is also refused, the matter will constitute error such as to necessitate a reversal. Branch, in his Ann. P. O. p. 29, and Vernon, in his O. C. P. pp. 434, 435, cite many authorities in support of this proposition.

We do not think there was error in failing to charge on circumstantial evidence in view of the testimony of the son of deceased that when the shot was fired he looked at once and saw appellant at the place from which the shot came, and the further fact that a number of statements of deceased appear in the record in which he says that appellant shot him.

For the refusal of the trial court to submit the issue of alibi, this court feels compelled to order a reversal, which is accordingly done. 
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