
    BATCHAN v. STATE.
    (No. 9861.)
    (Court of Criminal Appeals of Texas.
    May 19, 1926.)
    1. Homicide <®=M93 — Where self-defense is raised, admitting evidence to show innocent purpose of deceased in acquiring weapon without showing communication of purpose to accused, held error.
    In homicide prosecution, where evidence raised issue of self-defense by showing deceased was carrying part of buggy shaft, admission of evidence showing innocent intention of deceased in obtaining buggy shaft, without showing knowledge' of accused of such intention, held error.
    2. Homicide <§==>187 — Exclusion of evidence that one accused of murder, pleading self-defense, was physical weakling and subject to epileptic fits creating highly nervous temperament, held erroneous.
    In murder prosecution, where self-defense issue was raised, exclusion of evidence that accused was physical weakling and subject at times to epileptic fits resulting in highly nervous temperament, held erroneous.
    cg^Ror other eases see same topic and KEY-NUMBER in all Key-Numbered .Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Newton County; V. IT. Stark, Judge.
    Herbert Batchan was convicted of murder, and he appeals.
    Reversed and remanded.
    See, also, 283 S. W. 507.
    McCall' & Crawford, of Conroe, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is murder, and the punishment is 15 years in the penitentiary. This is a companion case to that of Frank Wilkes v. State (No. 9863) 280 S. W. 787, opinion, handed down February 17, 1926. A sufficient statement of the facts will be found in that case.

In the instant case, as in that case, the testimony shows that on the morning of the homicide deceased went to a blacksmith shop and got a stick, a part of a buggy shaft, and it also shows that such a stick was in his hand when the shooting occurred. The issue of self-defense was clearly raised by the testimony and was submitted by the court in his charge. The testimony is entirely sufficient to raise the issue that appellant was defending against the use of the stick above described.

With the record in this condition, appellant preserves his objection to the court’s action in permitting the state to ask the witness Bowden, the blacksmith, from whom the stick in question was' procured by deceased on the morning of the homicide, the following question:

“Wha.e did the boys that dealt in the stock business generally use these sticks and spokes for?”

In rcisponse to this question, the witness answered as follows:

“I presume they used them for whip handles. They told me on frequent occasions they made whip handles. They preferred hickory for that.”

Under all the authorities in this state, this testimony was not admissible. There is no suggestion or pretense that appellant had any knowledge of the deceased’s purpose in buying the stick in question. Almost the identical question has been before this court, and it was held that proof as to why deceased bought a gun is not admissible when it is not shown that defendant had knowledge of such reason at the time of the homicide. Cook v. State, 71 Tex. Cr. R. 532, 160 S. W. 465. The doctrine has been frequently announced that, when self-defense is an issue and it is not shown that defendant had knowledge thereof prior to the homicide, proof that deceased armed himself for another purpose than to injure defendant is not admissible. Woodard v. State (Tex. Cr. App.) 51 S. W. 1122; Nelson v. State (Tex. Cr. App.) 58 S. W. 108; Bradley v. State, 60 Tex. Cr. R. 402, 132 S. W. 488. Likewise it has been held that, if self-defense is an issue, proof of conversations between others, showing why defendant’s adversary' was armed, is not admissible against defendant when knowledge thereof is not brought home to him. Dowell v. State, 58 Tex. Cr. R. 482, 126 S. W. 874; Walker v. State, 63 Tex. Cr. R. 499, 140 S. W. 455; Ponder v. State, 69 Tex. Cr. R. 654, 155 S. W. 245.

The testimony objected to was nothing more nor less than proof of a motive that was undisclosed to the appellant as to why deceased armed himself on the day of the homicide, and, under the authorities above cited, a.s well as many others that might be collated, it was not admissible, in view of the fact that it impinged the appellant’s right of self-defense.

Another bill of exceptions discloses that the appellant offered to prove by the witness Russell that Herbert Batchan was a physical weakling and was subject to epileptic fits at times, and that on account of said fits he was of a highly nervous temperament. This testimony was objected to by the state, and was excluded by the court. The court, in’ qualifying the bill, says that no evidence that defendant had an epileptic fit at the time of the killing was introduced, and further certifies that he was apparently a strong robust man, and that such answers would not likely have been true, and that such evidence would have been a conclusion of the witness. We know of no rule that would have made it necessary for the, appellant to have actually had an epileptic fit at the timé of the killing in order to justify the court in admitting proof as to his physical, condition due to this malady, and we know of no rule of law that permits the trial court to exclude testimony on the ground that it jvould not likely have been true. Under our system this is a matter fpr the jury to determine. Wé are not in agreement with the court’s holding that this testimony would have been a mere conclusion of the witness. The bill shows that the witness would have testified not as a conclusion, but as a fact that the appellant was a physical weakling, and was subject to epileptic fits at times, and that on account thereof he was of a highly nervous temperament. The exact question was before this court in the case of Prank Wilkes v. State (No. 9863) 280 S. W. 787, opinion delivered February 17, 1926, and in that case, it was held that the testimony excluded presented a proper inquiry. Also see Terrell v. State, 53 Tex. Cr. R. 604, 111 S. W. 153.

For the errors above discussed, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  