
    TAIT v. STATE.
    (No. 10058.)
    Court of Criminal Appeals of Texas.
    Feb. 23, 1927.
    Rehearing Denied May 11, 1927.
    1. Criminal law <@=l 180 — Decision on former appeal constitutes “law of case” on second appeal.
    Decision of question on former appeal is law of case, where identical question is attempted, to ¿e raised on second appeal.
    2. Criminal law <@=1043(3)— Objection at trial to deceased’s statement as hearsay did not warrant consideration of statement as showing undisclosed motive.
    In prosecution for homicide, testimony'that deceased stated he came to see his mother and defendant shot him would not be considered on claim that statement showed motive undisclosed to defendant, where only objection raised at trial was that statement was hearsay.
    3. Criminal law <@=1043 (3) — Rulings are reviewed in light in which matter was presented at trial.
    Rulings of trial court are revised or upheld in light in which matter was presented at trial.
    4. Criminal law ’ <@=366(4) — Deceased’s statement, heard by witness who went to scene after hearing shots, held res gestae.
    Admitting testimony of witness that when he heard shots and went to scene of homL eide, and before sheriff and doctors had arrived, deceased said, “My God, why did you shoot me?” held not error; statement being part of res gestae.
    5. Criminal law <@=451 (2) — Explanation of defendant’s mother that she told deceased not to shoot because when he put his hand back she supposed he was trying to pull his gun held inadmissible (Code Cr. Proc. 1925, art. 728).
    In prosecution for homicide; testimony of defendant’s mother that she told deceased not to shoot because when he put his hand back she supposed he was trying to pull his gun held properly refused as opinion formed long after making of statement, there being no other related -statement sought to be clarified, under Code Cr. Proc. 1925, art. 728.
    6. Homicide <@=l 69(1) — Excluding testimony of defendant’s wife as to movements of deceased’s brothers prior to homicide held not error.
    In prosecution for homicide, rejecting testimony of defendant’s wife as to movements of brothers of deceased some time before homicide held not error.
    7. Criminal law <§=>1091 (I I) — 'Testimony in question and answer form will not be considered.
    Testimony set out in bill of exceptions in question and answer form will not be considered on appeal.
    8. Criminal law <§=>4I3(I), 419, 420(8)-^State-monts of defendant to his attorney, which attorney repeated-, held inadmissible as hearsay and self-serving.
    Statements made by defendant to his attorney and communicated by attorney to third persons held properly rejected as hearsay and self-serving.
    9. Criminal la,w <§=>730(14) — -Expression of state’s counsel that life was cheap in Texas and murders must be stopped held cured by written charge requiring jury to disregard statement.
    Statement of state’s counsel, in prosecution for homicide, that life was cheap in Texas and murders must be stopped held .cured by court’s written charge to jury not to consider such statement.
    On Motion for Rehearing.
    10. Criminal law <§=>1043(1) — Testimony objected to as a whole will be considered as whole in determining admissibility as against objection.
    Where entire testimony is objected to generally, testimony will be considered as a whole in determining admissibility; parts claimed to be especially objectionable not being separated.
    11. Criminal law <§=>695(6) — General objection to entire testimony is insufficient to reach part of testimony inadmissible as against specific objection.
    'To make available objection to testimony, part of which is admissible and part of which would be inadmissible as against particular objection, particular objection must be urged to that part claimed to be inadmissible; general objection to whole of testimony being insufficient.
    Appeal from District Court, Grayson County; Silas'Hare, Judge.
    C. A. Tait was convicted of an offense, and he appeals.
    Affirmed.
    O. B. Randell and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMiORE, J.

This is the second appeal. See 97 Tex. Cr. R. 119, 260 S. W. 584. The facts are sufficiently stated in the former opinion.

We discuss the errors in the order in which same appear in appellant’s brief. We are confused by the brief which refets to assignments of error instead of to bills of exception, and' in our opinion will refer only to said bills of exception.

Bill No. 1 sets out that the witness Brinkley swore to a statement made by deceased a short time after being shot, to the effect that he came to see his mother and appellant shot him. This was held to be res gestae in our -former opinion, and became part of the law of the case. In his brief herein appellant insists that said statement was objectionable because violative of the rule rejecting testimony of undisclosed motive on the part of the person slain in being at the place where he was shot. If said objection had been made in the court below, so that the attention of the learned trial judge could have been drawn to same when he made his ruling, there might be a different proposition before us, but examining the bill We find that no such objection was then máde. Trial courts rule-on questions presented to them, and we revise or uphold their rulings in the light in which-the matter was presented.

, On the former trial, objections substantially the same as on this were made to the testimony of Sheriff Craig, Dr. McElhannon, and Dr. Gunby. The complaints were considered and disposed of in our former opinion by holding the testimony res gestae.

In addition to the above, complaint is now made of testimony given by witness Jacobs, who said that, before the arrival of Sheriff'Craig and the doctors, deceased said, “My God, why did you shoot me?” The bill sets out that the witness'heard the shots and went down to the scene, and when he got there appellant was in his yard and deceased was in his lot on the ground. How close the-parties were to each other is not set out, nor is it stated to whom the remark of deceased was addressed. No surroundings or antecedent facts appear. The bill presents no error. The statement was res gest®.

Appellant’s mother was in the' house near where the shooting occurred. She testified on a habeas corpus hearing, and being dead at the time of this trial, her testimony as formerly given was reproduced on behalf of' appellant. She detailed seeing deceased, Pearl Rudasiil, approaching the house on horseback, said she heard appellant tell him three times to go back, saw deceased come on toward the house, and -said that he threw his hand back this way (indicating by moving her hand down toward her side), at which time she said, “Oh, Pearl, don’t shoot.” Appellant desired to read from her habeas corpus testimony a question as follows: “How came you to say ‘Oh, Pearl, don’t shoot?’ ” Also her answer “Why, when he put his hand back there I supposed he was trying to pull his gun,” but objection being made by the state, the question and answer were not. admitted. We are of opinion the court was correct. The witness had detailed the facts causing her to make the statement to deceased not to shoot. The rejected matter was an opinion formed and expressed long after the making of the statement by the witness to deceased, and there appears no effort on the part of the state to cast any doubt on the fact of deceased having made such statement. Appellant was in no sense attempting to introduce some other related statement smade at or about the time the statement already noticed which shed light on such statement. See Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 612. We think all of article 728, C. C. P. 1925, must be looked to in .construing the last clause thereof. When one party introduces the criminative acts or statements of another, such other has the right to fully explain same.

The matters set out in bill of exceptions No. 5 are open to a number of objections, but it is sufficient to say that the testimony called for was hearsay and appears immaterial to any issue in this case.

Bill of exceptions No. 6 wholly fails to inform this court as to the surrounding facts or circumstances which might make material or admissible the statement which was rejected.

Bill of exceptions No. 7, calling for the admission of the testimony of appellant’s wife as to movements of the brothers of deceased some time before this homicide, which testimony was rejected, presents no error. Substantially the same rule is applicable to the testimony involving the same principle which appears in bill of exceptions No. 8.

Our state’s attorney objects to the consideration of the testimony set out in bill of exceptions No. 9 on the ground that same is in question and answer form. We think the contention is sound.

What was said by appellant to his attorney, and by the latter communicated to “the Rudasills,” would appear hearsay and self-serving, and the court properly sustained the objection thereto.

The expression of state’s counsel, in substance, that life was cheap in Texas and that murders must be stopped, being objected to, the court gave a written charge to the jury .not to consider same. We do not regard such remarks of that character as would lead us to conclude the error in the making of same could not be cured by the charge given.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

The statement appearing in bill of exception No. 1, being what the witness Brinkley related as having been said to him by deceased, is “I came out to see my mother and he (appellant) told me to stop, and I was turning to leave and he shot me.” Appellant makes an ingenious argument in his motion for rehearing, insisting that, although no objection was interposed on the ground that the statement showed a motive for deceased’s presence which was undisclosed to appellant, yet that his objection to the testimony because it, was “hearsay” was sufficient. Appellant’s principal argument proceeds as though the words, “I came out to see my mother,” were standing out alone and disconnected from the remainder of the statement. It is not contended that the balance of the statement would be inadmissible, it being res gestee. The words now claimed to be especially objectionable cannot be separated from the remainder of the statement, but the whole must be taken together in appraising objections appearing in the bill. It is well settled that, in order to make available an objection to proffered testimony, part of Which is admissible and part of which would be inadmissible as against a particular objection, the specific objection must be urged to that part claimed to be inadmissible, and that a general objection to the whole of such testimony is insufficient. For collated authorities see note 49 under article 667, Vernon’s C. C. P. 1925, vol. 2, and Branch’s Ann. Tex. P. C. §211.

We feel impelled to' adhere to our former holding that the objection urged did not call attention of the trial court to the point now made, viz., that a part of the statement showed an undisclosed motive for deceased’s visit.

The motion for,rehearing is overruled.

MORROW, P. J., not sitting. 
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