
    POWERS v. STATE.
    (No. 6087.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1921.)
    1. Homicide <&wkey;>!56(2), 166(2) — Declarations of accused expressing fear of deceased held admissible.
    In a prosecution for homicide where accused claimed passion aroused by probable cause, declarations by him prior to the homicide expressing fear of trouble with deceased because he had whipped latter’s children, and seeking permission to carry a pistol, were admissible oq behalf of the state to illustrate the mental attitude of defendant toward the deceased and as bearing on his motive.
    2. Homicide <&wkey;>l8l — Declarations of accused showing insult to wife by decedent held admissible.
    In a prosecution for homicide where the state had introduced declarations of accused showing fear of trouble with deceased because he had whipped the latter’s children, it was error to exclude declarations of accused offered by him tending to corroborate his testimony that deceased had insulted his wife and that he killed deceased in heat of passion engendered thereby.
    3. Homicide <©=181 — Declarations by deceased of intentions against wife of accused are admissible.
    In a prosecution for homicide where accused claimed provocation arousing passion, evidence that deceased declared an intention to try to establish improper relations with the wife of accused, that the wife was friendly, and deceased did not fear accused, were admissible.
    4. Homicide <&wkey; 181 — -Whipping of deceased’s children by accused held admissible.
    In a prosecution for homicide where defendant claimed passion aroused by insults to his wife, the state could introduce evidence that accused had whipped the children of deceased to show the cause of the difficulty.
    5. Homicide <&wkey;l8l— State not concluded by evidence incident did not cause ill will between parties.
    The state is not concluded by evidence that the whipping of the children of deceased by defendant did not cause ill will between the parties, but can offer evidence of that incident as the cause of the killing, notwithstanding that testimony.
    6. Homicide <&wkey;46 — Truth of reported insults by deceased against wife of defendant does not affect adequate cause.
    In a prosecution for homicide where defendant claimed killing in passion aroused by insults by deceased to defendant’s wife, the jury in passing upon the issue of adequate cause for the passion are not to be governed by whether deceased was in fact guilty of the acts or words charged, but whether defendant had been informed that such was the ease and believed it to be true, since the consequence of information received and believed upon the mind of defendant is the same whether the information is false or true.
    7. Homicide <&wkey;295(3) — Omission to charge that truth of belief did not affect probable cause held erroneous.
    In a prosecution for homicide where the evidence showed that defendant’s wife had told defendant deceased insulted her just before he left the city and that while away deceased had written to defendant’s wife and that defendant killed deceased when he first met the latter on his return to the city, while the state sought to show that deceased had not been guilty of the conduct charged by defendant’s wife, an omission to charge, as requested, that in determining the issue of probable cause the jury should not consider the truth of the charges against deceased, was error.
    Appeal from District Court, Tyler County; D. F. Singleton, Judge.
    W. F. Powers was convicted of murder, and hie appeals.
    Reversed and remanded.
    J. B. Forse, of Newton, G. E. Richardson, of Jasper, and Robt. A. Shivers, of Woodville, for appellant.
    Alvin M-. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for 25 years.

The appellant shot and killed Maxey Wise. It was the state’s contention that malice inspired him. Appellant’s theory is that the act resulted from passion aroused by adequate cause which rendered him incapable of cool reflection. These issues were submitted to the jury.

The parties and their families were neighbors. Some time prior to the homicide the children of both engaged in conduct which required that they be chastised. Learning of this conduct, the appellant, during the absence of the deceased, went to his home and demanded of his wife the privilege of whipping the children. She assented and the children were whipped by the appellant. There, is much evidence to the effect that this incident did not disrupt the friendly intercourse of the families.

The state introduced evidence of the deelaz-ations of appellant, made prior to the homicide, expressing fear of trouble by reason of the episode in which the children were whipped and seeking permission to carry a pistol. The court committed no error in admitting'this testimony. It was illustrative of the mental attitude of''the appellant toward the deceased and bore upon his motive for the homicide. It came within the class of declarations, which, without exception, is held receivable. Wigmore on Evidence, vol. 3, § 1732; Wharton on Criminal Evidence, vol. 2, §§ 902 and 920; McKinney v. State, 8 Tex. App. 626; Branch’s Ann. Penal Code, §§ 1881, 1882.

The state having introduced these declarations of the appellant on the issue of his motive, we think, it was his right to prove by his witness Shivers that appellant exhibited to him certain letters and postal cards written by the deceased to the wife of appellant and that in connection with such exhibition the appellant stated that the deceased had used insulting words and conduct toward the appellant’s wife. This testimony bore upon the issue proffered by the state as to the state of appellant’s mind toward the deceased, gathered from his declarations made before the homicide, upon the motive upon which he acted. This evidence was explanatory of that offered by the state, and, we believe, comes within the purview of article 811 of the Code of Criminal Procedure in which it is said:

“When a * * * declaration or conversation * * * is given in evidence, any other * .» * declaration * * * which is necessary to make it fully understood or to explain, the same may also be given in evidence.”

This statute has been given interpretation in many cases which will be found collated in Vernon’s Texas Crim. Statutes, vol. 2, pp. 759, 760. Illustrative of their purport, we refer to the case of Jackson v. State, 55 Tex. Cr. R. 79, 115 S. W. 262, 131 Am. St. Rep. 792.

Whether embraced within the statute mentioned or not, the testimony should have been received. The state, by the declarations of the appellant, sought to show his animus toward the deceased. It was competent for the appellant to introduce the same character of testimony upon the same issue. That which was rejected tended to corroborate the theory of the appellant and was opposed to that of the state touching the motive which operated upon the mind of the appellant. Hill v. State, 52 Tex. Cr. R. 245, 106 S. W. 145. The evidence “that a short time prior to his departure for Dallas the deceased declared his intention to endeavor to establish improper relations with appellant’s wife, and stated that she was quite friendly and that he would make her afraid to tell the appellant, and that he did not fear the appellant,” was of a character which, we think, in previous decisions of this court, has been held admissible. Fossett v. State, 41 Tex. Cr. R. 400, 55 S. W. 497; Davis v. State, 70 Tex. Cr. R. 43, 155 S. W. 546; Hill v State, 52 Tex. Cr. R. 241, 106 S. W. 145; Bereal v. State, 225 S. W. 252; also, Wigmore on Evidence, § 332.

In McAnear v. State, 43 Tex. Cr. R. 522, 67 S. W. 117, the court excluded letters written by the deceased containing declarations confirmatory of the theory of the accused concerning the relations of the deceased with a female relative of McAnear. This court refused to sanction the ruling, stating:

“We know of no rule of law authorizing the exclusion of any evidence that makes manifest» the guilt of defendant, or that tends in the remotest degree to exculpate him. This testimony, as stated, if true, would have demonstrated to the jury, beyond any reasonable doubt, that the cause of. the killing was the improper relation of deceased with appellant’s sister.”

In Davis v. State the declaration of the deceased showing insulting conduct toward the wife of the accused was under consideration. The court, holding that the evidence was admissible, said:

“Proof of uncommunicated remarks of similar nature made by deceased about the female relative of defendant is admissible as tending to show the probable truth of insults that had been communicated.”

The same ruling is found in Walker v.’ State, 70 Tex. Cr. R. 88, 156 S. W. 206. The reasons for receiving such testimony, though not communicated to the accused on trial, are tersely stated by Judge Lattimore in Bereal v. State, 225 S. W. 252.

There being evidence introduced by the appellant that his life had been threatened by the deceased and that this was in-connection with efforts on the part of the deceased to enter into improper relations with appellant's wife, the state was within ■its rights in proving that the appellant had whipped the children of the deceased. This was a transaction which might have engendered ill feeling by the deceased against the appellant and tended to explain the alleged threat made by the deceased in a manner inconsistent with the color placed upon it hy the testimony adduced by the appellant. Moreover, the relation of his whipping of the children to the declaration of the appellant that because thereof trouble with the deceased was anticipated sustains the relevancy of the episode. It was neither disconnected nor collateral, but was a matter bearing directly upon the state of feelings between the parties and throwing, light, for the use of the jury, upon the cause of any such ill feeling as may have been disclosed. The evidence going to show that after the whipping of the children the relations between the parties were friendly was not conclusive against the state. We, however, discern nothing in the record which rendered relevant the details of the whipping of the children. Ware v. State, 86 Tex. Cr. R. 597, 88 S. W. 198; Stanley v. State, 62 Tex. Cr. R. 306, 137 S. W. 703; Menefee v. State, 67 Tex. Cr. R. 203, 149 S. W. 138.

By cross-examination of the appellant’s wife and by circumstances, the state controverted the alleged fact that the deceased had been guilty of improper conduct toward her. The appellant sought, by appropriate exceptions to the court’s charge and by special charges, to have, the jury advised that, in passing upon the issue of adequate cause growing out of insulting words and conduct toward the wife of the appellant, the criterion wa| not whether the deceased was, in fact, guilty of the acts or words, but whether the appellant had been informed that such was the ease and believed it to be true. The courts recognise this rule to be a correct one. They take cognizance of the fact that the consequences of information received and believed would be the same upon the mind of the accused in the event the information was false as though it were true. Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; Morrison v. State, 61 Tex. Cr. R. 223, 135 S. W. 551.

From the evidence it appears that about three weeks before he was killed the deceased went to Dallas to attend a mechanical school; that while there he wrote a. letter and some postal cards to appellant’s wife. These were not explicit, but were interpreted by appellant as suggestive of improper relations. There was evidence from one of the state’s witnesses that prior to the homicide appellant mentioned certain letters that his wife had received and referred to the fact that the deceased had been guilty of insulting conduct toward her. There was also evidence that appellant had written a letter to the deceased.

The wife of appellant. testified that on the day he left for Dallas, the deceased’s words and conduct toward her were insulting and that she informed her husband. According to the testimony of the appellant, he killed the deceased upon the first meeting with him after receiving this information from his wife and after he learned of the letters and postal cards. The return of the deceased was unexpected. On his arrival appellant was at the depot, and, according to his version, demanded of the deceased an explanation of his conduct, which the deceased declined to give, stating that it was" none of his (appellant’s) business. Appellant claims that, enraged by the conduct of the deceased, he fired the fatal shots. Upon these facts the court, having omitted in his main charge to inform the jury that it was not essential that they believe that the insulting words took place, should, in response to appellant’s exceptions and request for special instructions, have supplied this omission in his charge. His failure to do so, under the facts, may have seriously prejudiced the case of the appellant. We regard the error a material one.

From what has been said it follows that, in the opinion of the court, the judgment should be reversed and the cause remanded. Such is the order. 
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