
    BARNETT v. STATE.
    (No. 6176.)
    (Court of Criminal Appeals of Texas.
    April 13, 1921.)
    .1. Criminal law <&wkey;368(2) — In prosecution for aggravated assault, evidence that defendant’s companion charged complaining witness with writing insuiting letter admissible as res ges-ta.
    In a prosecution for aggravated assault, where the state showed that defendant and another went to the place of business of the complaining witness, that defendant stated to his companion he was the man, and that they followed him to the back of the store, where the assault occurred, etc., it was improper to exclude testimony that defendant’s companion charged the complaining witness with writing an insulting letter to his daughter and demanded such practice cease, etc.; for such evidence was part of the res geste.
    2. Criminal law <&wkey;396(2) — State having introduced part of transaction leading up to assault, defendant is entitled to introduce the whole.
    - i In a prosecution for aggravated assault occurring when defendant and his companion went to the store of the prosecuting witness, the state having introduced part of the transaction leading up to the assault, defendant was, under Code Cr. Proc. 1911, art. 811, entitled to introduce the whole of the transaction and show that the call was on account of an alleged insulting letter written by the complaining witness to the daughter of defendant’s companion.
    3. Criminal law <&wkey;1170(1) — Exclusion of evidence as to the reason for defendant’s visit to complaining witness held harmful error.
    Where defendant accompanied a father, who was demanding an explanation concerning an insulting letter written to his daughter, and the circumstances were such that, if the alleged writer had been killed in an assault resulting, the issue of manslaughter would have been raised as to the father, it was harmful to exclude evidence as to the- reason for the visit; it being defendant’s contention that he did not participate in the assault other than to protect his companion, who had a broken leg, after the latter had been thrown to the floor.
    Appeal from Palls County Court; E. M. Dodson, Judge.
    Jim Barnett was convicted of aggravated assault, and he appeals.
    Reversed.
    Nat Llewellyn, of Marlin, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant is convicted of aggravated assault and punishment fixed at a fine of $50.

The appellant and one Smith went to the place of business of Buis, and, according to the state’s testimony, assaulted him, Smith using his crutches as weapons and also drawing his pistol, and the appellant striking Buis on the head with a pistol.

Appellant’s testimony and theory was to the.effect that he accompanied Smith to the store in which puls worked; that Buis and Smith engaged in an altercation, and Buis caught Smith and threw him on the floor, a pistol firing at the time of the fall; that Smith called to appellant to take Buis off, as Smith at the time was suffering from a leg broken at another time and place; that appellant attempted to do so, but Buis resisted, when he was struck by the appellant for the purpose of preventing further injury to Smith.

It is shown by the state’s testimony that as appellant and Smith entered Smith asked if that was the man, referring to Buis, and received from appellant an affirmative answer. This was followed by Smith and appellant following the appellant, into the rear of the building. Buis claims that at the time he received the blow he was not on top of Smith, but lying by his side, holding the hand in which Smith held a pistol. It is made clear from the state’s testimony that appellant struck no blow until after Buis and Smith were lying down upon the floor. It was claimed by the state’s witnesses that before the assault by Smith the appellant told him to do what he had come there for.

Appellant testified that their purpose in going to the store was to talk to Buis, and that he was not aware that Smith was armed until the shot was fired.

In several bills of exceptions complaint is made of the refusal of the court to sanction the introduction of testimony to the effect that upon entering the store Smith charged Buis with writing an insulting letter to Smith’s daughter and insisted that it should not be repeated; that Buis admitted writing the letter, but denied that it was insulting; that a controversy ensued between Buis and Smith and culminated in the fight between them. This testimony, according to the bills, was available. from the mouth of the state’s witnesses and was excluded as irrelevant and immaterial. Its exclusion, in our judgment, was error.

By the part of the transaction proved by the state the appellant was put in the attitude of acting with Smith in an unprovoked attack upon the injured party. The conversation which took place at the time between Smith and Buis was a part of the transaction tending to explain the acts of Smith and of the appellant. It was res gestee. Underhill on Criminal Evidence, § 95, and cases cited in note 13.

The state having proved a part of the transaction, the declarations which were also a part of it and which served to explain the motive which actuated the appellant and Smith were admissible by virtue of the statuté (article 811), which declares that, when a part of an act, declaration, or conversation is given in evidence by one party, the whole on the subject may be introduced by the other. The exclusion of the evidence was harmful for the reason that the part of the transaction carved out and introduced by the state put the appellant and Smith wholly in the wrong in beginning the difficulty, while that excluded would have gone to show that Smith, in demanding an explanation of the conduct of Buis in writing the insulting letter, was performing a lawful act, and as to him obviously, if death had resulted, the issue of manslaughter would have arisen, and- upon the same facts we think it would likewise have arisen to appellant. Guffee v. State, 8 Tex. App. 409. Moreover, it was calculated to mitigate the offense, if one had been committed by the appellant, and might have resulted in an acquittal. In the light of it the jury might have concluded that the appellant’s act was defensive of Smith and inspired by no motive' other than his protection against excessive force of his assailant. Pratt v. State, 53 Tex. Or. R. 285, 109 S. W. 138; Wood v. State,' 2S Tex. App. 61, 12 S. W. 405; Code of Criin. Procedure, art. 811.

The exclusion of the evidence entitles the appellant to a reversal of the judgment, which is accordingly ordered. 
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