
    WILLIAMS v. STATE.
    (No. 5615.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1920.
    On Motion for Rehearing, March 24, 1920.)
    1. Criminal law <&wkey;1091(ll) — Exceptions SHOULD NOT ORDINARILY SET OUT TESTIMONY BY QUESTIONS AND ANSWERS.
    A bill of exceptions complaining of the introduction of testimony should not ordinarily set out the objectionable testimony in the form of questions and answers, and such mode of preparing bill of exceptions should be resorted to only when the character of the testimony is such that it is deemed necessary to reproduce it in that form in order to correctly present it.
    2. Criminal la'w <&wkey; 1169(2) — Hearsay STATEMENT THAT DEFENDANT CHARGED WITH CARRYING WEAPON HAD EXHIBITED PISTOL HELD HARMLESS.
    In a prosecution for unlawfully carrying a pistol, where the state asserted that when defendant’s sister engaged in a fight with another negro woman he sat in a buggy and exhibited his weapon, the erroneous admission of a hearsay statement made by the other participant in the fight who after being vanquished sought to reach a white man’s house and suggested a detour into fields because defendant had a pistol, was harmless; there being abundant other testimony that defendant exhibited a pistol during the fight.
    On Motion for Rehearing.
    3. Criminal law <&wkey;1141(2) — Appellant has BURDEN OF SHOWING THAT RULING ON EVIDENCE WAS WRONG.
    An appellant complaining of the admission of testimony has the burden of showing that the court’s ruling was wrong.
    4. Criminal law <&wkey;368(3) — Statement by PARTICIPANT IN FIGHT THAT ACCUSED HAD A PISTOL HELD RES GESTiE.
    Where defendant’s sister and another negro woman engaged in a fight, and, the sister being victorious, the other negress left the place of the fight and went to a store where her husband had sought to call up officers, and being unable to secure officers, the vanquished negress and her husband started to the house of a white man, and when they came near the point of the fight where defendant was still maintaining his ground, the vanquished negress told her husband that he had a pistol, and the two made a detour in the field, held that, as the statement was made less than an hour after the fight, evidence thereof was admissible as part of the res gestee, though the statement was made out of the hearing of defendant.
    Appeal from Williamson County Court; F. D. Love, Judge. ,
    A. W. Williams was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Dan Moody, of Taylor, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of unlawfully carrying a pistol, and fined $100.

Two negro women, Sallie Baldwin and Laura Sneed, engaged in a fight. The appellant was sitting in a buggy near by, and, according to the testimony of Sallie Baldwin, Joe Baldwin, and Louis Baldwin, the appellant exhibited a pistol during this fight. The Sneed woman, who got the best of the fight, was appellant’s sister. She denied that appellant had a pistol, as did her son and the appellant. After the fight Jeff Baldwin went to a store near by to phone for what he termed “the law.” While he was there his wife, Sallie Baldwin, came; and he testified that she was bleeding about her nose. He said:

“We stayed there 20 or 30 minutes trying to get the officers from Taylor; then started up the road towards Kuykendall’s house, going there to tell about the trouble. We went up the road towards Mr. Kuykendall’s house, and as 'soon as we left we saw the defendant Williams and Laura Sneed sitting in the buggy at the road. Sallie told me about the fight while we were at the store. After we had gone up the road about 200 yards from the store she said, ‘You have not even got a poeketknife, and they have got a pistol up there.’ We then got out of the road into the field.”

The appellant did not hear the remark about the pistol, and insists that the reference to it under the circumstances was reversible error. The bill of exceptions is a reproduction in question and answer form of the notes of the stenographer, which we take occasion to say is a very unsatisfactory way of preparing a bill of exceptions, and should be resorted to only when the character of testimony is such that it is deemed necessary to reproduce it in this form in order to correctly present it. We gather from the bill, however, that while the fight was in progress the witness Jeff Baldwin went to the store, some 200 yards distant, to make a report of the fight to the officers at Taylor; that he was there some 20 or 30 minutes, and while there his wife arrived, the appellant and members of the Sneed family at the time remaining at the scene of the fight; that, failing to get into communication with the officers, Baldwin and his wife started in the direction of the home of a white man named Kuykendall to report the difficulty to him, and while on their way they observed that appellant and his relatives, the adversaries of the Baldwins in the fight, were at a point which would have to be passed by Baldwin and his wife in going to Mr. Kuykendall’s residence; and that at this point Sallie Baldwin made the remark complained of, and, acting thereon, she and her husband abandoned the road and crossed the field.

It was developed that Sallie Baldwin at the store had related the incidents of the fight to her husband, but did not then mention the pistol. It is not claimed that appellant took any part in the fight further than to exhibit his pistol while it was in progress and intimate that he would use it to prevent injury to his sister, Laura Sneed.

The trial court regarded the statement as admissible as res gestee, and as presented we are not able to determine that it was not; but, assuming that the appellant is correct in his contention that it was not res gestee, we are unable to reach the conclusion that, when taken in connection with the remainder of the record, it' is of such importance as to require a reversal of the judgment. In its most hurtful aspect against the appellant it involves the statement of Sallie Baldwin to her husband, Jeff Baldwin, that they, appellant and others, were in possession of a pistol. At the time this statement was made the appellant was still upon the scene of the conflict between Sallie Baldwin and Laura Sneed, where, according to the state’s testimony, he had exhibited the pistol. The beginning of the fight grew out of the fact that Sallie Baldwin had started to Kuykendall’s residence to make a report of some controversy with the Sneed people; Laura Sneed giving her a whipping because of this intention. At the time the remark complained of was made the Baldwin woman, accompanied by her husband, was still trying to get to Kuykendall’s residence, and the appellant, in company with Laura Sneed, occupied a place along the road which was between Kuykendall’s place and the Baldwins.' Observing him there, they turned off the road; Sallie Baldwin stating at the time in effect that it would not be safe to go there because they had a pistol. She had stated in her testimony previously in positive terms that he had exhibited the pistol during the fight. Several other witnesses had given testimony to the same effect.

There are no other questions requiring consideration.

The judgment is affirmed.

On Motion for Rehearing.

As a predicate for the objection to the testimony of Jeff Baldwin complained of, the appellant, in the absence of the jury, developed that at the time Sallie Baldwin made the statement about the pistol they had left the store at Rice’s Crossing, and were going up the road north about 200 yards from the store; the defendant at the time was sitting in a buggy about 100 yards from the witness and Sallie Baldwin, and could not hear what she said; that the witness saw him in the buggy as soon as they left the store, and could see him all the time they were walking the 200 yards; that he did not know how long after the fight, but the witness stayed at the store 20 or 30 minutes after Sallie came; during this time efforts were being made to phone the officers; that to walk the 200 yards would require about 7 or 8 minutes, and that from where the fight occurred it would take about 10 minutes to walk to the store, and the statement made by Sallie Baldwin was estimated to have taken placo about 45 minutes after the fight; that while at the store Sallie Baldwin told the witness about the fight, but said nothing about the pistol until they had walked 200 yards from the store in the direction of the defendant; that she was not excited while walking the 200 yards.

Predicated upon these facts, the appellant objected to the testimony of the witness Jeff Baldwin to the effect that Sallie Baldwin said to him: “Jeff, you haven’t even got a pocketknife, and they have a pistol up there.” At the time this statement was made, they were about 100 yards from the appellant, and they got out of the road into the field. The witness Sallie Baldwin gave the same testimony, to which there was also addressed an objection, and appellant developed from her as a predicate for objection practically the same facts as are detailed above with reference to the testimony of Jeff Baldwin.

The substance of the objection is that the testimony was hearsay, and not res gestee. The evidence having been admitted, it is appellant’s burden ’to show by his bill of exceptions that the court’s ruling was wrong. A statement of the principles or rules upon which res gestae statements become admissible as an exception to the rule excluding hearsay furnish only in a qualified manner a guide to the appellate court in passing upon the ruling in a particular case. Of the practice in this court, the editor of Wharton’s work on Criminal Evidence, p. 499, says:

“The Court of Criminal Appeals of Texas has so far departed from the definition in the admission of all facts, circumstances, statements, occurrences, before, accompanying, and after, that, as illustrating the rule, the cases would be of no value as to the limit set for res gestee. The practice in this court as to res gestee is readily explained from the fact that the Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all of the evidence before applying the law to the case' at hand, and hence the admissions as res gestae in the Texas court are not so harmful an application of the rules of evidence as in courts less painstaking with examination of records, and who dwell more upon the strict rules of law.”

The accuracy of this statement is verified by an examination of the decided cases.

It is shown in the instant case that from a half to three-quarters of an hour elapsed between the time the fight took place in which the pistol was exhibited and the statement complained of was uttered. In Lewis’ Case, 29 Tex. App. 202, the statement admitted was an hour and a half after the difficulty. In the case of Rice v. State, 54 Tex. Cr. R. 150, 112 S. W. 299, it was made about an hour after the injury. With reference to the lapse of time, a similar ruling was made in Jones v. State, 52 Tex. Cr. R. 305, 106 S. W. 345, 124 Am. St. Rep. 1097, and in Thomas v. State, 47 Tex. Cr. R. 535, 84 S. W. 823, 122 Am. St. Rep. 712. For other cases see Rose’s Notes on Texas Reports, vol. 5, p. 808.

It is said they must spring out of the principal fact, tend to explain it, be voluntary, and made at a time so near as to preclude the idea of deliberate design. Obviously, under the application of the rule as it exists in this state, a certain degree of reliance upon the judgment and discretion of the trial judge, in determining whether the statement is made under circumstances which meet these requirements, must be placed. The witnesses say that Sallie Baldwin was not excited. The trial judge who heard the testimony had before him all of the circumstances, which went to show that 30 or 40 minutes before the statement was made she and another negro woman had a fight in which this witness was badly worsted. At the time of this fight the appellant was in company with the other combatant, and, according to the witnesses, exhibited a pistol. The witness was bitten through the nose. While Jeff Baldwin, the husband of Sallie Baldwin, was at the store where he had gone to communicate with the officers, his wife came, and, according to his testimony, she was bleeding about the nose. They then started to the home of Mr. Kuykendall, a white man, to report the trouble, and saw the appellant on the road between the store and Kuykendall’s house. On seeing him, they got out of . the road and went into the field and pursued their way, and at the time, or just before, they went into the field the remark complained of was made. ■The conclusion of the witness that there was no excitement was not binding upon the trial court, who evidently did not credit it, and, considering the circumstances, we cannot say he was not justified in drawing therefrom the conclusion that 'the mind of the witness Sallie Baldwin was not at the time in a condition to form a deliberate design. It appears that they did not see the appellant when they left the store, but saw him after, and when they did see him the remark was made and acted upon. This occurred while the parties were yet on the scene of the difficulty, or near by, and while they were undertaking- to communicate with the parties in authority, and we can discern nothing in the bill of exceptions which would authorize us to overturn the conclusion of the trial judge that the statement sprung out of the principal fact, tended to explain it, and was voluntary and spontaneous. The exhibition of the pistol was one of the incidents of the fight, and, from the testimony of the state’s witnesses, was a means of intimidation. .'

We are unable to reach the conclusion that it is shown by the bill that in admitting the reference complained of the court transgressed the rules of evidence prevailing in this state.

The motion is overruled. 
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