
    OLIVER v. STATE.
    (No. 8266.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.)
    1. Criminal law i&wkey;392 — Admission of subpcena for and proof of iifness of witness sought to contradict defendant held error.
    In a prosecution for murder defended on the ground of self-defense, where defendant twice denied that just after the killing he had stated to a friend, the owner of a lodging house, to which he went, that he had just gotten even with a man who beat him up, held, that it was prejudicial error to admit in evidence a subpoena issued for such lodging house keeper, and proof that she was sick and unable to attend, notwithstanding the court instructed that such evidence could only be considered as affecting the state’s diligence in producing proof of the matter denied by defendant.
    2. Criminal law <®=o366 (3) — Statements of deceased after being shot held part of res gestee.
    Statements of deceased made from a few minutes to a half hour after he was shot, and while suffering intensely from mortal wounds, held properly admitted as res gestee.
    3. Homicide @==>193 — Proof that deceased’s own pistol was empty at the time of shooting held not error.
    Where deceased, after being shot, stated that his own pistol was empty, affecting the defense of-self-defense, held, it was not error to permit proof that earlier in the evening, while riding in a car, he had discharged his pistol a number of times, showed his empty pistol to his companions, and stated that he had emptied it.
    4. Homicide <&wkey;338(4) — Improper ’admission of statement by deceased held not prejudicial.
    In a prosecution for murder, defended on the ground of self-defense, where the state introduced evidence that deceased’s pistol at the time of the shooting was empty, permitting a witness, a hardware merchant, to testify that' earlier in the evening deceased had come to him to get cartridges, and at the time volunteered the statement that he did not have any, held not prejudicial error where the court properly instructed the jury that the latter statement was inadmissible, and should not be considered.
    
      5. Homicide &wkey;>!63(l)— Army discharge showing defendant’s conduct as soidier excellent inadmissible.
    In the prosecution for murder, the army discharge of defendant, showing that' his conduct as a soldier was excellent, held inadmissible.
    Appeal from District Court, Hardin County; J. M. Combs, Judge.
    Sidney Oliver was convicted of murder, and he appeals.
    Reversed and remanded.
    See, also, 253 ,S. W. 284.
    Coe & Briggs, of Kountze, and Blain & Jones, of Beaumont, for appellant.
    'Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State/
   LATTIMORE, J.

Appellant was convicted in the district court of Hardin county of the offense of murder, and his punishment fixed at confinement in the penitentiary for life.

There seems no contention over the proposition that deceased was shot and killed by appellant about 3 or 4 o’clock at night in the town of Sour Lake, in Hardin county, a pump shotgun being used by appellant. The record reflects that the issue was as to whether the killing was upon self-defense or with malice. Appellant contended that as he came down the street past a building in- course of erection known as the Sharpstein Building he was fired upon by some one who was in the darkness of the entrance to that building, and that he raised his shotgun and emptied all the shells in the magazine before he quit firing. The state’s ease was that, resulting from enmity based upon various causes, appellant procured a shotgun and went to where deceased, a night watchman in the discharge of his duties, was, and that when deceased tried to escape into the partially finished building appellant emptied hi§ gun into his back. Deceased was shot in two places in his back and from close range. Appellant stated that he was about 8 or 10 feet from the man at whom he shot. Deceased made a number of statements so closly connected with the shooting as to be res gestas in our opinion, in which he stated that he was shot by appellant, and that he was trying to escape, and that his pistol was empty. We notice the contentions made by appellant on this appeal.

From the judgment we learn that the case went to trial on January 15, 1923. The state introduced six witnesses, and rested its case. Appellant was his own first witness. He testified that about 2 or 3 o’clock on Christmas morning, 1920, he was going along the street in Sour Lake and was fired at by a man whom he thought to be deecased, and that with a shotgun had by him for the purpose of going duck hunting that morning he returned the fire, and that after his magazine was empty he ran to a nearby rooming house kept by Mrs. Ferris and engaged a room, and ¿here spent the rest of the night. His own home was about 150 yards from the scene of the shooting. He said he awaked Mrs. Ferris and engaged a room from her. On cross-examination he was twice asked if he did not tell Mrs. Ferris that he had just gotten even with a man who had beat him up. It was in testimony that at a carnival a short time before that appellant had been severely beaten up, and that he was not aware who his assailant was, but thought it was deceased. Appellant denied having made the statement to Mrs. Ferris.

In its rebuttal the state was allowed to introduce a subpoena issued on January 16, 1923, for Mrs. Ferris, and served on the same day; also to put on the stand a brother of Mrs. Ferris, and by him prove that she was sick and unable to come to court. By two bills of exception appellant objected to this procedure. In his charge the learned trial judge told the jury that they could not consider the evidence as to the subpoena and as to the illness of Mrs. Ferris save for the limited purpose of affecting the diligence of the state in the matter of securing the testimony of the lady. An exception was reserved to this charge. Appellant’s motion for new trial is accompanied by the affidavit of Mrs. Ferris in which she states that at the time she rented a room to appellant he made no statement to her to the effect that he had gotten even with a man who had beat him up;- also she says that she had never told anyone that he had made such statement.

We have thus the proposition that the state, apparently without sufficient foundation for belief that such was a fact, twice asked appellant while a witness if he had not made the statement indicated to Mrs. Ferris. If he had in fact made same, proof of this before the jury would have most forcibly met and overthrown the defense made by appellant while a witness. He had “twice, denied having made the statement to ■ Mrs. Ferris. At once the state-issues a subpoena for her. The logical inference would be that she was wanted to prove that which áppel-lant had denied, viz. that he did make said statement to her. There is no suggestion that she knew anything else of materiality. The process failing to bring her, the state wished to show to the jury that they had tried to get her without success, and also to put in-testimony the reason why they could not produce her. This they were permitted to do. This we have concluded they should not have been allowed to do. Such proof could shed no light on the homicide; but here sat the jury. They know that the court lets in before them only that evidence which is for their aid in solving the question of guilt or not. They also find in the charge of the court a direction that they can consider the issuance of the subpoena for Mrs. Ferris during this trial, and the proof that she could not come because of illness, for the purpose of showing the state’s diligence in trying to get her there as a witness. They do consider it. What then? We picture them in the jury room discussing it: “The state surely tried to get Mrs. Ferris here.” “Well, what did they want with her?” “Why send an officer out post haste for her right during the trial?” “Why, didn’t you hear Oliver deny that he told her that he got even with the man that beat him up?” “Yes; he denied it twice.” How natural and apparently irresistible the conclusion of some or all of the jury: “Well, if she had not been sick they would have gotten her here; she certainly would have said that he told her that very thing; that is all she could know about the case.” To speculate on the extent of the evil effects of all this before the jury would seem idle. They could not take the path pointed out by the charge and consider the state’s efforts to get the witness, and then turn on a mental stopcock and go no further. They had heard the questions to appellant. They knew if he had killed to get even this would likely be stated by him to the first friend he met. He had formerly stayed at the house of Mrs. Ferris. He went there first and immediately after 'the homicide. How likely that he did say it. The attorney knew that he said it. Mrs. Ferris had- likely told him so. He was surprised when Oliver denied it. He asked him twice, and when he stuck to it the attorney tried to get Mrs. Ferris, and but for her illness would have had her here, and we would have had the truth. What we have just said suggests ordinary mental processes incident to this situation. It was capable of tremendous hurt to appellant, whose punishment was fixed at imprisonment for life. The evidence of the subpcena for Mrs. Ferris and of the fact that she was ill and could not come should not have been admitted, and consequently, the testimony having been erroneously admitted, in our opinion the charge emphasized the error.

Testimony of statements made by deceased at times variously estimated at from a few minutes to about a half hour after he was shot, during which deceased was. shown to be suffering intensely from mortal wounds, was properly admitted as res gestee.

Among other statements attributed to deceased soon after being shot was one to the effect that his pistol was empty. This fact was further established. We do not think it was erroneous to permit the state to show that while riding in a car earlier in the night deceased had discharged his pistol a number of times and showed its empty cylinder to companions, and in that connection stated that he had emptied the pistol.

There is a bill of exceptions complaining of the testimony of a hardware merchant that deceased came to him that night and wanted to get cartridges, and that they went to his store for that purpose. The matter is confused. The statement of facts certified to as correct by the official court reporter shows that the witness testified as follows: “I went back to the store with him. I told him I hadn’t a one.” -The bill of exceptions is prepared on the hypothesis that deceased applied to the witness for cartridges, and told witness that he did not have a one. In either event no error is shown, for it appears in the qualification made by the trial judge to the bill that the witness was introduced for the purpose of showing that deceased came to him to get cartridges, and that in conjunction with the answer to this inquiry the witness volunteered the statement that deceased said he did not have a one, whereupon the court instructed the jury promptly that this latter statement was inadmissible, and should not be considered.

Mr. O’Neal was a witness for appellant. He testified that his wife was at her home in Phillips Bluff, La., about 10 days before a former trial of this case in January, 1922. Complaint is made because the state was permitted to show that one Bonner had seen Mrs. O’JNfeal for 4 or 5 weeks before the trial in January, 1922. Where Bonner saw her is not averred' in the bill, and we cannot say that the witness was impeached on an immaterial matter from an examination for the rec-cord. We notice in the statement of facts that O’Neal swore that he was not at home in January, 1922, and did not know where his wife was.

Appellant sought to introduce the army discharge of said O’Neal showing that his conduct as a soldier was excellent. We have held this character of testimony to be inadmissible, and our ‘ conclusion would seem to be specially sound in view of the fact that the war had been ended five years at the time this witness was introduced, and no other effort was made to show good reputation on his part.

For the error above mentioned, the judgment will be reversed, and the cause remanded. 
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