
    (85 Tex. Cr. R. 42)
    THOMAS v. STATE.
    (No. 5243.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.
    On State’s Motion for Rehearing, March 12, 1919.)
    1. Criminal Law <§=>1099(10) — Appeal— Agreed Statement of Facts — Signing bit Both Parties.
    Where a statement of facts, signed only by appellant’s attorney, was approved by the judge, and no-attack made on its correctness, and no-effort made to show that it was not agreed to by state’s attorney, it must be held Sufficient.
    2. Criminal Law <§=>1098 — Appeal—Statement of Facts — Sufficiency.
    In a' criminal appeal a purported statement of facts, made up wholly of questions and answers, will be stricken from the record upon' motion.
    
      3. Criminal Raw @=>1097(4) — Appeal — Statement oe Facts — Admissibility of Evidence.
    An exception to the court’s action in admitting as a part of the res gestae a statement to the effect that defendant shot deceased cannot be determined, where there is no statement' of facts.
    4. Homicide @=>277, 301—Defense of Another—In stetjcttons .
    Where there was evidence that deceased shot defendant’s sister, and at once advanced toward her, and while so advancing was himself shot by defendant, it was a question for the jury as to whether the shooting was justifiable, and failure to instruct thereon was reversible error.
    5. Homicide @=>300'(9)—Self-Defense—In-struction.
    Where nothing appears in evidence which could have caused defendant to think deceased was making an unlawful attack upon him, there was no error in refusing to charge on self-defense.
    6. Homicide @=>196—Immaterial Evidence.
    Where defendant shot deceased immediately after deceased had shot defendant’s sister, and while he was advancing toward her, evidence that deceased had a bottle of whisky in his pocket held immaterial, and its exclusion not error.
    7. Witnesses @=>379 (11)—Impeaching Testimony.
    In a murder trial evidence of one witness as to what another witness told him after the killing was admissible, if sufficient predicate was laid, for the purpose of impeachment.
    Appeal from District Court, San Jacinto County; E. W. Love, Special Judge.
    Milton Thomas was convicted' of manslaughter, and he appeals.
    Reversed and remanded.
    Wm. McMurrey, of Cold Springs, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was tried in the court below for the offense of m’urder, and was convicted of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of five years.

We are confronted at the very beginning with a motion made by the Assistant Attorney General to strike out the statement of facts, based upon two grounds: First, because the same is not signed and agreed to by counsel representing the state as well as the appellant in the trial court; second, because said statement of facts is wholly in the form of questions and answers.

The statute upon the question of statement of facts contemplates that both parties to a cause shall sign such statement of facts, thereby certifying their agreement thereto, and that thereafter it shall be presented to the trial court, who shall approve it, if correct ; but the statute also provides that if the parties do not agree, or the court fail to find the agreed statement correct, in either event the trial court shall make out, sign, and file with the clerk a correct statement of facts proven on the trial.

The whole purpose of this statute is to give the parties appealing a method of getting evidence on their contested issues before the appellate court, and to make it so that in any event the trial court be the party to whose approval this court would look in deciding whether or not said statement of facts be correct. In the instant case the statement of facts is approved by the trial judge, though signed only by the attorney for the appellant. No attack is made on the correctness of the statement, and no effort made to show that the same was never agreed to by the attorney for the state in the lower court. Two authorities are cited in support of the state’s motion, both of which we have examined. Pollock v. State, 60 Tex. Cr. R. 265, 131 S. W. 1094, was cited, and holds the contrary of the state’s contention here, as Judge Ramsey in that case allows a statement of facts to be considered which is not signed by either counsel in the lower court, and is merely marked, “Approved, T. A. Bledsoe, Judge.” Nor is there any certificate of said judge that there was a disagreement between counsel for the parties in that case. In the other case cited in support of the motion, it appears upon examination that no statement of facts was filed within the time allowed by law. We believe the correct rule to be other than that as stated in the motion. Trammell v. State, 1 Tex. App. 121; Pollock v. State, 60 Tex. Cr. R. 265, 131 S. W. 1094; Serop v. State, 69 Tex. Cr. R. 399, 154 S. W. 557; Miles v. State, 200 S. W. 158.

The. other ground of the state’s motion is well taken, and the purported statement of facts will be stricken from the record because the same appears to be made up wholly of questions and answers. Hawkins v. State, 77 Tex. Cr. R. 520, 179 S. W. 448; Stephens v. State, 77 Tex. Cr. R. 30, 177 S. W. 92; Mooney v. State, 73 Tex. Cr. R. 121, 164 S. W. 828; King v. State, 198 S. W. 782.

Appellant’s first bill of exceptions is to the court’s action in admitting as part of the res gestae the statement of one Asa Thomas to the effect that appellant had shot deceased. The statement of facts having been stricken out, we are unable to say whether such evidence comes within the rule of res gestae or not.

We are of opinion that the court should have given the law substantially as set forth in appellant’s special charges Nos. 3 and 4. The facts stated in said bills, as approved by the trial court, show that deceased had just shot the sister of appellant while she was standing in the front door of appellant’s home, and that deceased at once started into the house where said assaulted sister was, and that appellant then shot him, all transpiring in a moment’s time. The main charge of the court below did not submit self-defense either of appellant or another, and the said special charges Nos. 3 and 4 are as follows:

“Special charge No. 3: You are further charged: A reasonable apprehension of death or great bodily harm to a near relative of a person will excuse a party using all necessary force to protect the life or person of said near relative, and it is not necessary there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.
“If from the evidence you believe the defendant killed said Major Bass, but further believe that at the time of so doing the deceased had made an attack upon Bettie Hardin, a sister of defendant, which from the manner and character of it, and the relative strength and situation of the parties, caused defendant to, have a reasonable expectation or fear of death or serious bodily injury to his said sister, and that acting on such reasonable expectation or fear the defendant killed the deceased, then you should acquit him.
“Special charge No. 4: You are further charged that if you believe from the testimony that the deceased, Major Bass, at the time of the killing, was attempting to do serious bodily harm to the sister of defendant, Bettie Hardin, and the defendant shot and killed the said Major Bass in order to prevent serious bodily harm to his said sister, Bettie Hardin, you will find the defendant not guilty.”

Under the just provision of our law our citizens are permitted, in proper cases, to defend the person of another against real or apparent danger under substantially the same rules governing the defense of one’s own person, and when the evidence raises that issue the trial court cannot ignore same. If, as stated in said bill of exceptions, the deceased had in fact shot appellant’s sister, and at once advanced toward the place where she was, and while so advancing was himself shot by appellant, it becomes at least a question of fact for the jury, under appropriate instructions, as to whether the shooting by appellant under such circumstances was justifiable. This court through its presiding judge, said, in Mayhew’s Case, 65 Tex. Cr. R, 293, 144 S. W. 230, 39 L. R. A. (N. S.) 671: “The law is that whatever he may do for himself he may do for another under such circumstances, and this to be viewed from his standpoint.” See, also, authorities cited in that case.

As appears by this record, we can see no error in refusing appellant’s special charge No. 5, as there appears nothing herein to cause appellant to think deceased was making an unlawful attack upon him, and j J therefore nothing to give him the right to a charge on self-defense as applied to himself.

We can find nothing in the record making it material evidence that deceased had a bottle of whisky in his pocket when he was shot, and hold that the trial court did not err in excluding testimony of that fact. In the absence of a statement of facts, which is referred to in that part of his bill of exceptions complaining thereof, we can see no error in allowing the evidence of the witness Wash Hardin as to what Bettie Hardin told him after the killing. If a sufficient predicate were laid, the evidence was admissible for the purpose of impeaching said witness.

This disposes of the errors complained of, and, for the reason that the court below declined to give the substance of the law applicable to defense of another, the judgment of the court below is reversed, and the cause remanded for another trial.

On State’s Motion for liehearing.

In a former opinion of this court the statement of facts in this case was stricken out upon motion of the state, said motion containing two grounds, with one of which this court did not agree. The state has filed this motion for a rehearing, asking that we either modify our holding in the original opinion declining to sustain the motion of the state to strike out the statement of facts on the ground that it was not properly authenticated, or else that we expressly overrule certain decisions which are cited and discussed by the able Asssistant Attorney General in his motion for rehearing, and which it is contended are not in line with that portion of our original opinion.

Again inspecting the purported statement of facts in this case, we observe that it begins with the words:

“Statement of Facts.
“State of Texas v. Milton Thomas. No. 3231. In the District Court, Ninth Judicial District, San Jacinto County, Texas, Special July Term, 1918.”

We also note that at the end of said purported statement appears the following:

“I, J. D. Harwood, official shorthand reporter for a special term of the district court of San Jacinto county, Texas, hold in August, A. D. 1918, do hereby certify that the foregoing 37 pages contain a true and correct statement of all the evidence adduced on the trial of the above cause.
“Witness my hand this the 30’th day of August, A. D. 1918. J. D. Harwood,
“Official Shorthand Reporter for a Special Term of the District Court of San Jacinto County, Texas, held in August, A. D. 1918.
j “We, the undersigned attorneys, who participated in the trial of the foregoing cause of the State of Texas v. Milton Thomas, do J hereby agree that the foregoing 37 pages contain a true and correct statement of all the evidence adduced on the trial of the said cause, and we agree that the same shall be filed with the records of this cause as the statement of facts heroin.
“Witness our hands this the 30th day of August, A, D. 1018.
“Attorneys for the State.
“Wm. McMurray,
“Attorney for the defendant.
“Approved this the 30th day of August, A. 0. 1918. E. W. Love,
“Special Judge Presiding at a Special Term of the Bistrict Court of San Jacinto County, Texas, at a Special Term, August, A. D. 1918.”

We call attention to the case of Brown v. State, 56 Tex. Cr. R. 87, 119 S. W. 312, in which will be found a very similar authentication to that in the instant case, and this court there approves the rule laid down in the Lozano Case, 81 -S. W. 37, and, after discussing them, expressly overrules those cases holding to the contrary, most of those discussed in the state’s motion for rehearing being overruled in said opinion.

We have found many forms of authentication of statements of fact upheld by this court and the Supreme Court, the general conclusion being that the main object of our statutes and decisions on this subject is to secure to appellants and to the appellate courts a correct presentation of the facts and testimony in the trial courts, to attain which object a substantial compliance with the statutes is necessary, but to prevent the defeat of which object the question as to what is a substantial compliance must be left to the sound judgment of the ■ appellate courts. No hard and fast rule as to such authentication has been found, but we suggest that it is always safest to follow the plain path pointed out by our statute.

Believing our former opinion correct in principle, and that the decisions contrary thereto were disposed of in the Brown Case, supra, the motion for rehearing is overruled. 
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