
    DE LEON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.)
    1. Homicide (§ 300) — Instructions — Self. Defense.
    Where there were no eyewitnesses to a homicide, and accused did not testify, but the state proved that immediately following the homicide he voluntarily sought the city marshal and made a statement concerning the matter, claiming to have acted in self-defense, accused was entitled to an instruction that there could be no conviction, unless the state disproved such statement.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§ 166) — Evidence to Show Motive — Admissibility.
    On a trial for homicide the testimony of deceased’s father that deceased expected to marry accused’s sister on the day following the homicide, that he and deceased were going for the license on that day, but that he knew nothing about the matter, except what deceased had told him, was incompetent, in the absence of any evidence that accused knew of the relations between his sister and deceased, or that he was objecting to the marriage.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dee. Dig. § 166.]
    3. Homicide (§ 166) — Evidence to Show Motive — Admissibility.
    On a trial for homicide evidence that accused’s sister, whom, it was claimed, deceased expected to marry, died from the effects of poison seven or eight days subsequent to the homicide, having apparently committed suicide, was not admissible to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331;_ Dec. Dig. § 166.]
    4. Witnesses (§ 406) — Impeaching Own Witness.
    On a trial for homicide, where accused’s mother testified that she did not know what caused the death, a few days subsequent to the homicide, of her daughter, whom, it was claimed, deceased' expected to marry, testimony of a physician, tending to show that she died from the effects of poison, was not admissible to impeach the mother.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dee. Dig. § 406.]
    
      5. Criminal Eaw ■(§ 673) — Limiting Effect qf Impeaching Testimony.
    Where testimony is admissible for the purpose of impeachment only, the court should limit its effect to that purpose.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    Appeal from District Court,.De Witt County; John M. Green, Judge.
    Pedro De Leon was convicted of murder in the first degree, and he appeals.
    Reversed and remanded.
    Davidson & Bailey, of Cuero, and E. C. Gaines, of Austin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For otter, cases see same topic and section NUMBER, in Deo. Dig. & Am.. Dig..Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was. given a life sentence for murder in the first degree.

This killing occurred in Yorktown, De Witt county, where appellant and deceased had known each other for some length of time. The state’s contention was, and the testimony offered was to the effect, that there had beén previous ill feeling between the parties. About a year prior to the homicide appellant had cursed deceased and, in effect,, had challenged him to. fight. Mitigating this immediate circumstance, however, the facts show that the deceased, in quite a crowd of Mexicans and negroes, “was poking fun at and hurrahing,” as the witnesses call it, an old man, when appellant interfered, and his remarks to deceased in that connection were in resentment of the overbearing imposition upon the old man. It is also shown by a state’s witness that about a month prior to the homicide appellant had stated 'to him he had had trouble with deceased, and had knocked him out of the buggy with his fist, and if he did not quit his foolishness he was going to hurt him “some of these days.” The state’s witness Perez disclosed in his testimony that he. had had quite a lot of trouble in the courts, in which he had been prosecuted in several cases, among others, one for homicide. Appellant did not testify in his own behalf, but from the testimony of witnesses offered by the state the homicide must have occurred about dark.. About 8 o’clock appellant saw the city marshal and informed him of the difficulty, having spent considerable time seeking the marshal before finding him. Appellant made a statement to the night watchman, marshal, and Gus Metz, which was introduced against him, telling them he had a difficulty on the other side of the creek, in which he had been attacked with a "knife. In connection with this statement he exhibited a cut on his clothing and the knife, which he claimed to have picked up after the fight. He further stated that he had struck his assailant on the head a time or two, knocking him down, one of the licks causing the gun to discharge and causing his assailant to run- away, and that he did not know whether the gunshot hit him or not. The party who had made the attack proved to be deceased, whose name was Arrellano.. Some of the evidence discloses that appellant had a cane, patch, which he had visited to detect, if he could, who had been committing depredations upon it. He had been to this cane patch and was returning home when he met the deceased, and the trouble ensued. Appellant carried with him what he called a target rifle. His statement was to the effect that the deceased attacked him with a knife, and that he struck him on the head with the gun, and deceased dropped the knife, and he picked it up and brought it away.

1. It is not the purpose of this opinion to follow all of the exceptions reserved and objections to the charge as presented in the record and to this court for revision. It is contended that, inasmuch as the state had put in evidence the statements of the defendant which connected him with the homicide, and the exculpatory matters relieving him from culpability, it was incumbent upon the court, under the ruling in the Pharr Case in 7 Tex. App. 472, and the subsequent decisions following ■ that case, to submit to the jury that, unless the state disproved the statements of the defendant, he should not be convicted. Under the facts of this case we are of opinion the court should have submitted the. law as laid down in that line of authorities. There, were no eyewitnesses to the transaction) and the statements appellant made were shortly after the trouble: these. statements having been made to the officers to whom he surrendered. The state used these statements, and it was in this manner appellant was connected with the homicide. By said statements the issue of self-defense was clearly presented.

2. The state proved by the father of the deceased that the sister of the defendant was expected to marry his son, or rather that his son expected to marry the sister of defendant, on.the day subsequent to the homicide; that his son had made no preparation, however, to get married, but that'he (the witness) was going with his son the following day to get the license; and that all that he knew about the matter was what his son, the deceased, had told him. This all occurred without the knowledge of the appellant. There are. quite a number of reasons urged why this testimony was not admissible. . Without reviewing them it is sufficient to say that this testimony could only be admitted against the defendant upon the theory of motive under this record. In order to use this character- of testimony against the accused, it must be shown in some way that he was aware Of the relations between deceased and his sister and of the proposed marriage, and was urging objection to it. If appellant knew that deceased was going to marry his sister, or was contemplating doing. so, and was opposed to it, it blight be used as a circumstance before tbe jury; but it could not be used against bim in tbe absence of any knowledge on bis part of tbe existing relations and circumstances. This has been decided so often we hardly deem it necessary to cite authorities to support tbe proposition. However, we might refer to Phillips v. State, 22 Tex. App. 139, 2 S. W. 601; Golin v. State, 37 Tex. Cr. R. 90, 38 S. W. 794; Price v. State, 65 S. W. 909; Attaway v. State, 41 Tex. Cr. R. 395, 55 S. W. 45; Barkman v. State, 41 Tex. Cr. R. 105, 52 S. W. 73. Pacts were introduced to show that such relations did not exist between deceased and appellant’s sister.

3. There is another serious proposition urged for reversal which'we think presents error. There was testimony, through Dr. Allen and others, to the effect that seven or eight days subsequent to the homicide the sister of appellant, referred to in the previous proposition, died from the effects of arsenic x)oison. There was no positive evidence of this fact, but Dr. Allen testified, while he did not make an examination to discover whether the girl died from arsenic poison or not, yet he states the symptoms attending her death so indicated. There was no analysis made to discover whether she was or was not poisoned. The mother of the girl testified that she did not know what caused the death of her daughter; that she had been sick since the preceding October, and grew worse a day or two before her death, and violently so the day before her death. The state placed the mother of the deceased girl on the stand and asked her the cause of the death, and having proved by her that she did not know the state thereupon offered the testimony of Dr. Allen, who testified that he thought the girl died an unnatural death. Just why this testimony was admitted is not clear, whether as impeaching evidence or to show motive. The court, in a lengthy discussion with the attorneys in the absence of the jury, remarked at different stages of the discussion that it was admitted first for one and then another reason. It could not have been offered for any reason. The testimony of Dr. Allen could not impeach the mother’s testimony, nor could it show motive on the part of the defendant. This occurred some days subsequent to the homicide, and the defendant was not present and had no connection with the matter. It seems to have been the idea that the girl committed suicide. This testimony was clearly inadmissible from any standpoint. If the testimony had been legitimate for the purpose of impeachment, it would have been the duty of the court to limit it to impeachment; but we are of opinion it could not be used to impeach the mother. The bill of exceptions showing the above matters is quite lengthy, and prepared by the court, as he states, because the bill offered by appellant’s- counsel was not satisfactory to the court. Without going further into the question suggested for revision, we are of opinion that we have said enough to indicate to the court that those matters and things which occurred in the absence of defendant and without his knowledge should not be used as testimony on the trial of his case. It is evident the state was seeking a- motive, and the testimony was to overcome the statements of the defendant, made to the officers and introduced by the state, connecting him with the homicide. Those statements were exculpatory,, and it devolved • upon the state to meet- those and overcome them with some character of testimony, but that testimony must be' legitimate, such as is authorized by the law and rules of evidence.

For the reasons indicated, the judgment is reversed, and the cause is remanded.  