
    WILSON v. STATE.
    (No. 9272.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    1. Witnesses <&wkey;374(2) — Cross-examination relative to father’s statement in accused's absence held properly admitted to show interest, bias, and animus of father, who denied them towards deceased. '
    In murder prosecution, cross-examination relative to father’s statements in accused’s absence that he would have killed deceased and his companion, and that shells were loaded for deceased, held, properly admitted to show interest, bias, and animus of father, who had denied making such statements.
    2. Criminal law <&wkey;4!9, 420(1) — Witnesses <&wkey;>405(!) — Testimony of matters which took place in accused’s absence and without his knowledge held hearsay and attempt to impeach material defense witness on immaterial and collateral matter.
    In murder prosecution, permitting cross-examination of defendant’s sisters as to writing letters to deceased and companion to meet them at a certain place, and testimony to rebut their denial, held erroneous, since matters inquired about and proved took place in accused’s absence and without his knowledge, was hearsay, and an attempt to impeach a material defense witness on immaterial and collateral issues.
    3. Criminal law <&wkey;450.
    Permitting testimony that accused’s mother stated to father that he was responsible for homicide 'held error as invading province of jury.
    4. Criminal law <&wkey;450.
    It is for jury to determine who caused homicide, and same is never left to conclusion or opinion of witness.
    
      5. Criminal law <&wkey;4!9, 420(1) — Testimony of witness that accused's sisters had written let.ter requesting him and deceased to meet them on day of homicide held inadmissible as hearsay.
    In murder prosecution, testimony of witness that accused’s sisters had written letter requesting him and deceased to meet them on day of homicide held inadmissible as hearsay.
    Commissioner’s Decision.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Pink Wilson was convicted of manslaughter, and he appeals.
    Keversed and remanded.
    Bozeman & Cathey, of Quitmán, and Floyd Harry, of Farmersville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKEIi, J.

The appellant was charged by indictment with murdering Ernest Aaron by shooting him with a gun, and found guilty of manslaughter, and his punishment assessed at two years in the penitentiary.

Briefly staged, the record discloses that, on the evening of the homicide, the deceased, Ernest Aaron, and Barney Pilkington passed the house of the appellant’s father, where the' appellant resided, going in the direction of a church house, and were hollowing and making unnecessary 'noise, and shortly thereafter returned, and, when opposite the house or just past it, going in an opposite directions they called the father of the appellant out to the road, where a wordy altercation took place between said parties, and said T. H. Wilson, father of the appellant, turned back and walked to his gate, and the undisputed testimony shows that the other parties followed him a few steps in that direction. It was the contention of the state that the appellant at this, point shot and killed the deceased without, cause or provocation, and without the deceased’s being armed.

It was the contention of the appellant, -and he so testified, as well as his father) his mother, three- sisters, and his brother, that, when his father was called out by the deceased and- said Pilkington, they began to curse and abuse him and apply the vilest of epithets to him, and said Pilkington had a pistol in his hand, waving it, and said deceased had a drawn knife in his right hand, and both of them were cursing and vowing that they would kill T. H. Wilson, father' of the appellant, and were following him to the gate, during which time the appellant had taken from, the house a shotgun and-gone to the gate, and that, when the deceased had his hand uplifted with a knife drawn, cursing the said T.-H. Wilson, and stating.that he would kill him, and advancing towards him, appellant then shot and killed the deceased, and said Pilkington ran off; that said deceased fell and died with the knife in his right hand. -The record further discloses that the officers found the knife open and in the hand of the deceased when they arrived at the scene of the homicide, but it was the contention of the state upon the trial that said knife, which was admitted to belong to Pilk-i.ngton, was placed in deceased’s hands after his death. The appellant, in addition to the other matters, testified that the only reason he had for killing the deceased was in the defense of his father, and to protect his life against the attack made on him by deceased.

The record further discloses that the deceased and appellant’s sister, who was about 16 years of age, prior to the homicide, had been guilty- of improper relations with each other, and appellant’s father, on two prior occasions, had ordered the deceased to stay away from his residence and keep away from his premises. It also appears from the record that the deceased was about 22 years of age, the appellant about 17 years of age, and the appellant’s father was a man. of about 82 years of age.

■ The record discloses 50 bills of exceptions, and on account of this great number we are precluded, for the sake of brevity, from'attempting to discuss each one of them separately, and will have to content ourselves with discussing the issues and principles raised therein, instead of the bills separately.

The appellant complains, as set out in some of said bills, to the action of the court in permitting the state, on cross-examination, to ask T. H.- Wilson, father of the-appellant, if he did not state to the state’s witnesses that he would have killed the deceased a long time before the date of the homicide, if they had let him alone, and that, if Pilkington had not run off, he would have been killed also, and in permitting a state’s witness who had sought to borrow some shotgun shells from T. H. "Wilson, to state that he (said Wilson) told him said shells were loaded for the deceased, all of which, was in the absence of the appellant, and the state was permitted to introduce said testimony of the' said several state’s witnesses to prpve said statements inquired about and to impeach the said T. H-. Wilson. The court committed no-error in ■ admitting this testimony upon the issue of the interest, bias, and animus of the witness T. H. Wilson, who had denied making such statements. Branch’s Ann. Tex. B. G. § 163.

The appellant also objected, as shown by some of said bills, to the court’s permitting the district attorney to ask India and Alta Wilson, on cross-examination, after they had testified as above stated to his actions in full defense of his father, if they had not written and sent, letters on the -day prior f<? the homicide, to- the deceased and Barney. Pilkington, requesting that they meet them on the evening of the homicide at a certain place, all o-f which was denied by them, and the state in turn was permitted to ask said sisters of appellant if they had not in fact met said boys at said place, which was also denied. Then the state, over the objection of the appellant, was permitted to prove by said Pilkington and Burl'Thomas that said girls did meet said deceased and Pilkington at the time and place inquired about by the state. Said bills of exceptions show that all the above testimony under discussion and the matters inquired about and proven by the state took plaee in the absence of the appellant, and were without his knowledge, hearsay, and that same was an attempt to impeach, and impeachment of, his material witnesses who had testified in his defense, on immaterial and collateral issues. . We think the contention of the appellant made to the matters above raised is well taken, and that the learned judge fell into error in admitting said testimony, over the objections of the appellant thereto. Ballard v. State, 160 S. W. 716, 71 Tex. Cr. R 587; Finks v, State, 209 S. W. 154, 84 Tex. Cr. R. 536, on page 539.

Objection is further urged to the court’s permitting the state to prove by one of the state’s witnesses that several hours after the homicide, in appellant’s absence, he heard the mother of the appellant state to his father that, if it had not been for him, referring to appellant’s father, this matter would not have happened, referring to the homicide. We think the court was clearly in error in admitting this testimony, because in short it is nothing more nor less than allowing the state to show indirectly by one of the state’s witnesses that it was the opinion of the mother of the appellant that her husband was the cause of the homicide, and said opinion or statement was right in the teeth of the testimony that appellant’s mother had given in 'his own behalf, in which her testimony clearly showed that he was acting in the defense of his father, and was squarely in conflict with all the evidence for the defense. This court has frequently held that such testimony is not admissible, and that it is the sole province of the jury to determine, from all the facts .and circumstances in the case, who caused the homicide after receiving the law properly applied thereto, from the trial court, and same is never left to the conclusion or opinion of any witness. Streight v. State, 138 S. W. 748, 62 Tex. Crim. Rep. 453; Marsh v. State, 112 S. W. 321, 54 Tex. Cr. R. 147. For collation of authorities, see Branch’s Ann. P. C., § 133, pp. 75-77.

It was also error for the court to permit the witness Pilkington for the state to testify that the deceased had informed him that the Wilson girls had written a letter requesting him and the deceased to meet them on the day of the homicide, because same was hearsay evidence, and the appellant could not be bound thereby without some knowledge thereof.

" For the reasons above mentioned, we aré of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER GURIAM,

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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