
    HENRY v. STATE.
    (No. 10627.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1927.)
    Criminal law <©=>-396(2) — Exclusion of part of conversation in which defendant said he acted in self-defense held error, after admission of balance of conversation (Code Cr. Proo, 1925, art. 728).
    In prosecution for murder, where defendant relied on defense of self-defense, and where state introduced testimony that defendant, within 30 or 40 minutes after the shooting told witness that he had shot deceased, it was error to exclude balance of conversation to effect that defendant also stated that he acted in self-defense, in view of Code Cr. Proc. 1925, art 728.
    2. Criminal law <©=>!092(11) — Bill of exceptions will be considered without reference to qualification by court over appellant’s objection.
    Where the. court qualifies appellant’s bill of exception without appellant’s consent, and over his objection, the bill will be considered without reference to the qualification.
    Commissioners’ Decision.
    Appeal from District Court, Freestone County; J. R. Bell, Judge.
    Sim Henry was convicted of murder, and he appeals.
    Reversed and remanded.'
    Williford & Geppert, of Fairfield, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BETHEA, J.

The appell-ant was convicted of murder, and his punishment assessed at five years in the penitentiary.

A brief statement of the facts is necessary for a proper discussion of the questions raised in the record. On the afternoon of the 17th day of January, 1926, between 3 and 4 o’clock, the deceased, Mack Crowder, was chopping wood some little distance north of his house. The appellant came to where the deceased was at work, and a conversation took place between the two men. The deceased’s wife, Pearl Crowder, who, from the record, is the only eyewitness to the killing, testified that, when she arrived at the scene of the killing, and before the killing took place, the appellant was sitting down, and the deceased was standing up with one foot upon a stump and his elbow resting on his knee; that they were not talking when she walked up; that appellant did not say anything until she spoke .to him, and told him the best thing he could do was to go bacir home. She further testified that appellant sprang to his feet, and said, “Yes, I will go because I am tired of the sons-of-bitches lying on me”; that appellant then threw the gun down in her face, but she did not run; that, when the appellant threw the gun in her face, the deceased whirled to run, and, in whirling, dropped his axe; that deceased stepped off two or three steps, and turned around, and, as he turned, appellant fired on him; that deceased did not say a word at the time, and neither did the appellant say anything immediately preceding the shooting.

The appellant defended on the ground of self-defense. Appellant testified that he was on his way down to his mother’s to see her about helping his wife on the next Monday; that, when he got near the deceased’s place, he saw the deceased cutting wood about 50 steps from the trail he was traveling. Appellant said he went out to where the deceased was chopping the wood, because he and the deceased were very friendly; that, when he walked up, he and the deceased spoke to each other in a' friendly manner, but in a few minutes the deceased accused the appellant of carrying news from colored girls to white men, and also accused appellant of carrying word between white boys and negro girls. Appellant testified that, while this conversation was going on, deceased’s wife walked up. Deceased then informed the appellant that his information came to him from his (deceased’s) wife. Appellant then branded the accusation as a lie, and the deceased started at the appellant with an axe, saying, “Don’t call my wife a liar.” Appellant further testified as follows:

“When he started at me with an axe, he was about four or five steps away from me. I told him to stop, and I backed back and jumped up and backed back. When he did not stop, X shot. I would not have shot if it had not been necessary in order to protect myself. I did not want to shoot him; I had no desire to shoot him; I shot him just one time; * * * I shot just once, and he had the axe raised, and was coming toward me. The axe fell when I shot him, and right where I shot him.”

Bills of exception Nos. 1, 2, 3, 5, 6, and 7, as presented, show no error.

Bill of exception No. 4 complains of the action of the trial court in permitting the state, on cross-examination of appellant’s witness, Watt Henry, to show that. appellant, in 30 or 40 minutes after the shooting, came by a neighbor’s, house, where the witness, Watt Henry, was and told the said witness, Watt Henry, that the appellant had shot the deceased, Mack Crowder. Appellant’s counsel, on redirect examination, asked the witness if appellant, at the same time, and in the same conversation, told him why he had shot the deceased. The state objected on the ground this testimony was not res gestee and, if answered, would be a self-serving declaration, and the court sustained the state’s objection. The bill further shows that appellant asked the same question again, basing his right to have the question answered on the ground that, the state having brought out a part of the conversation, the appellant had the right to bring out the balance of the conversation that took place between the same parties, at the same time, about the same matter, and the state objected to the witness answering the question, and the court sustained the objection. The bill further shows that, if the witness had been permitted to answer the question, he would have testified that the appellant told him he shot the deceased because the deceased was coming on to him with an axe. This was the first time the matter had been mentioned by the appellant, and was estimated by the witness, Watt Henry, to have been 30 or 40 minutes after the shooting. , The failure of the learned trial judge in not permitting the appellant to prove the whole of the statement made by him to the said witness, Watt Henry, after the state had inquired into the statement and introduced a part of the same, was error.

Article 728 of the Code of Criminal Procedure 1925 provides:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. 'When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

It has been repeatedly held by this court, in construing the above article that, when a part of an act, declaration, or conversation is given in evidence by one party, the whole of said declaration or- conversation on the same subject may be inquired into by the other party. The fact that the sole and only defense offered by appellant' was that he killed the deceased while the deceased was making an assault upon him with an axe makes it very material that the appellant should have been permitted, on re-direct examination, to show the whole of the conversation that took place between the said witness, Watt Henry, and the appellant, to wit, that the reason he killed deceased was because deceased was coming on to him with an axe. We do not think the court’s qualification of this bill in any way sustains his action, but, on the contrary, said qualification magnifies the error committed.

We further note the record discloses a separate'bill of exception, to wit, bill of exception No. 4a, in which the appellant excepted to the court qualifying this bill without his consent, and over his objection. Appellant having so excepted to the court’s qualification, this bill is considered without reference to the learned trial judge’s qualifications.

Por the error pointed out - above, 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. 
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