
    SMITH v. STATE.
    (No. 4208.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Rehearing Denied Nov. 22, 1916.)
    1. Criminal Daw &wkey;>361(l), 364(4) — Evidence —Declarations—Admissibility.
    In a prosecution for manslaughter, a remark by defendant’s wife and his'reply: “Go back to the house. I have done nothing but
    kill a d-n dog” — was properly admitted in
    evidence, the statement being made almost immediately following the killing, and the remark of the wife being necessary to explain defendant’s statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803, 808, 816; Dec. Dig. &wkey;361(l), 364(4).]
    2. Homicide <&wkey;327 —Appeal and Error — Bill op Exceptions.
    A bill of exceptions to review error in admitting proof of dying declarations must contain and state that it contains all the predicate laid on which the dying declarations are admitted, and must also set out the declaration.
    [Ed Note. — For other cases, see Homicide, Cent. Dig. § 695; Dec. Dig. <&wkey;327J
    3. Homicide <&wkey;115 — Manslaughter—Justification.
    That defendant suffered a ample assault, causing pain or bloodshed, is no justification for homicide, although it reduces the offense to manslaughter, but to justify the killing he must show that he was in danger of death or serious bodily injury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 155-157; Dec. Dig. &wkey;115.]
    4. Homicide <&wkey;329 — Appeal ' and Error — Review.
    Where on the entire record it appears that the jury would have been authorized to return no other verdict than the one found, which was manslaughter, the appellate court will not, in disregard of its rules, review alleged errors in the admission of a dying declaration, were such error was not urged on motion for new trial, and where the bill of exceptions is insufficient.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 696; Dec. Dig. <&wkey;>329.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Monroe Smith was convicted of manslaughter, and appeals.
    Affirmed.
    I. D. Fairchild and Mantooth & Collins, all of Lufkin, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction for manslaughter. While there are three bills of exception in the record, in the argument of appellant’s attorney made in open court and in the brief filed he presents but one of them — the one complaining of the admission of the alleged dying declaration in evidence. The other two complain that the court was in error in admitting the statement, of appellant’s wife and his reply: “Oh, go back to the house. I have done nothing but kill a d-n dog.” If the remark of the wife had not-been necessary to make plain the remark of appellant, her remark would not have been admissible. Certainly no one can contend but that the remark of appellant was admissible. No arrest had been made. No officer was present, and the remark was made almost immediately following the fatal shooting. These bills present no error.

As to the .bill complaining of admitting the alleged dying declaration in evidence, the state contends we should not consider it, because in the motion for a new trial this question was not raised, nor presented to the trial court as a reason why the trial court should have set the judgment aside, and we are referred to the ease of Gant v. State, 73 Tex. Cr. R. 279, 165 S. W. 142, as supporting the state’s contention. See, also, Rules, pp. viii to xi, 159 S. W.; Vinson v. State, 179 S. W. 574; Dees v. Crane, 175 S. W. 468. In that case, decided March 14, 1914, we called the attention of the bar to the fact that our Supreme Court was given authority to prescribe rules for the government of all courts, and had provided that grounds not presented to the trial court in the motion for a new trial could not be considered on appeal. To consider the bill in this case, we must ignore' that rule of the Supreme Court. Appellant admits that in his motion for a new trial -there is no ground specifically assigning the admission of the dying declaration as error, but says it was an oversight, and contends that, inasmuch as we have always heretofore, in emphasizing that we must follow the rules adopted by the Supreme Court, gone into and discussed the bills, we should, notwithstanding the omission, consider his hill in this instance. We have never felt inclined, nor do we now feel inclined, to deprive an appellant of a substantial right by reason of a technical failure to observe the rules, but counsel ought to remember that, while this court is a court of final resort, yet the laws of the state and the rules governing the courts are and should be binding on us.

The state insists that, notwithstanding the appellant did not complain in the motion for a new trial of admitting the alleged dying declaration, if we consider it, the bill itself is insufficient to present that question for review, and cites us to the cases of Highsmith v. State, 41 Tex. Cr. R. 37, 50 S. W. 723, 51 S. W. 919; Edens v. State, 41 Tex. Cr. R. 523, 55 S. W. 815; Hopkins v. State, 53 S. W. 619; Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 331; and other cases. In these cases the rule is stated to he:

“A bill of exceptions taken to the supposed error of admitting proof of dying declarations must contain and state that it contains all the predicate laid on which the dying declarations are admitted, and must also set out the declaration.”

Appellant admits his bill does not state that all the predicate was not properly laid, nor that it contains all the testimony heard in laying the predicate for the admission of the testimony, but says, as the court refers to the statement of facts in approving the bill, this qualification of the court ought to he held to cure the defects of the bill. And he again urges that in the past, while referring to these defects, we have nearly in every instance gone on and discussed the hill, and he asks that we consider this bill.

We will state that we have read this bill and the entire record, and we are of the opinion that, had this alleged dying declaration not been introduced in evidence, the Jury could and would have been authorized to return no verdict other than at least finding appellant guilty of manslaughter. Of course, ,the state’s case would render appellant guilty of murder, and we will not consider that testimony, but take the testimony offered in behalf of appellant. His testimony is the strongest offered in his behalf, and he admits that deceased was unarmed and in his shirt sleeves. He testifies to no threatening gesture, as if deceased was seeking a weapon of any character. He testifies that deceased was the larger man of the two; that he went to deceased’s place of business in search of Mr. Durham, with whom he claimed to have some business; that he asked deceased if Durham was in there, and’ deceased, instead of answering him, cursed him and hit him; that they scuffled around, when deceased struck him in the mouth and knocked him down and commenced kicking him; that he asked deceased to quit, and when he would not do so, he pulled his pistol and shot him three times. One wound was in the stomach, one in the hand, and the other in the thigh. ■ Two of the wounds are apparently from the front, while the other is from the rear. The theory of appellant is that deceased was facing him when he fired the first two shots, and turned as he fired the last shot. The state by its testimony would contend that when the first shot was fired, deceased had his back to appellant walking off, and he then turned facing appellant.

Appellant admits that deceased was not armed, but says that during the alteration deceased called him a s n of a b-h, and said he would kill him. This remark, the blow in the mouth, the kicks, and' the relative size of the parties is appellant’s testimony of excuse and mitigation of the killing. If everything he says is true, would it justify appellant in slaying his fellow man? The injuries received by appellant, as shown by his testimony, and all the testimony, are such that if deceased was alive and on trial for the assault we could not sustain a verdict of aggravated assault, but the injuries received would only show a simple assault by deceased if appellant’s testimony is the correct version of the affair, and if one unjustifiably make a simple assault on another, causing pain or bloodshed, it reduces the offense to manslaughter, but does not justify one in killing. There must be danger of death or serious bodily injury before he is justifiable in slaying his antagonist.

If the law is to be properly enforced, we think the facts of this case would render appellant guilty of manslaughter, taking into consideration alone the testimony offered in his behalf; and, taking this view of the case, as he was found guilty of manslaughter only, we do not feel inclined to ignore the rules of the court in the first place to consider the hill, and then ignore the rules as regards the sufficiency of bills of this character. Appellant is deprived of no substantial right in enforcing the rules.

The judgmént is affirmed. 
      ¿SursEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     