
    ROBBINS v. STATE.
    (No. 2876.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§§ 14, 1206) — Prosecution and Punishment — Modification of Law.
    Under Pen. Code 1911, arts. 15-19, providing that, where a penalty is ameliorated by a subsequent law, a party committing an offense prior to the adoption of the subsequent law shall be punished under the later law unless he shall elect otherwise, but that in other respects the defendant shall be tried under the old law, where a defendant was charged with committing a murder before Pen. Code 1911, arts. 1140, 1141, defining murder, were amended by Act April .3, 1913 (Acts 33d Leg. c. 132), the court should charge the jury as to the definition of murder under the old law, but, as to the penalty, under the new law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 15, 3271-3277, 3279, 3280 Dec. Dig. §§ 14, 1206.]
    2. Criminal Law (§ 366) — Evidence—Res ■ Gestae — Declarations of Defendant’s WIFE.
    Where the defendant killed his wife and another at the same time, declarations by the wife, just after the shooting and prior to her death, which were part of the res gestae, were admissible, in a prosecution for the killing of the other, notwithstanding they were uttered by the defendant’s wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    3. Criminal Law (§§ 419, 420) — Evidence-Declarations — Hearsay.
    In a prosecution for homicide, dying declarations of the deceased, to the effect that defendant’s wife had appealed to deceased for protection, early in the evening, and that defendant had threatened to kill her, were hearsay evidence of statements by the defendant’s wife, and were inadmissible, although his statements as to how the shooting occurred and what was done and said by the parties at that time were admissible both as res gestee and as dying declarations.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    4. Criminal Law (§ 369) — Homicide — Evidence-Indictment for Previous Attempt.
    Where defendant killed his wife and another at the same time, evidence, in a prosecution for the killing of the other, that the defendant had been indicted for an assault with intent to murder his wife was admissible; the state’s contention being that defendant killed his wife to prevent her from testifying in the other prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    5. Criminal Law (f 369) — Homicide—Evidence-Previous Attempt by Defendant.
    Where defendant killed his wife and another, evidence, in a prosecution for the killing of the other, that defendant had previously assaulted and seriously injured his wife, which occasioned an indictment in another county, was admissible to support the state’s contention that defendant killed his wife to prevent her from testifying in the other prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Homicide (§ 158) — Evidence — Declarations of Defendant’s Wife — Presence of Defendant.
    Declarations by defendant’s wife that he had made threats against her on various occasions, and testimony that she had called upon a deputy sheriff for protection against him, were admissible, in a prosecution for the killing of another at the same time as defendant killed his wife, provided such statements were made in defendant’s hearing or brought to his knowledge before the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig: §§ 293-296; Dec. Dig. § 158.]
    7. Homicide (§ 231) — Evidence — Foundation for the Admission of Declarations.
    In a prosecution for homicide, the state can show, by either direct or circumstantial evidence, that the defendant had heard, prior to time of the killing, statements made by his wife which were offered in evidence against him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 479; Dec. Dig. § 231.]
    8. Homicide (§ 158) — Evidence — Declarations of Accused.
    Where defendant killed his wife and another at the same time, evidence that on the same evening a witness heard defendant cursing his wife was admissible and pertinent, in a prosecution for the killing of the other.
    [Ed. Note. — For other cases, see Homicide: Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    
      Mose Bobbins was convicted of murder in the first degree, and be appeals.
    Reversed and remanded.
    Marsene Johnson and Elmo Johnson, both of Galveston, N. C. Walker, of San Saba, and Roy Johnson, of Galveston, for appellant. C. 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
    
   PRENDERGAST, P. J.

On November 2, 1911, appellant was indicted for the murder of I. T. Blake, alleged to have been committed in Ft. Bend county on June 15, 1911. The venue, was properly changed to Galveston county, where this trial occurred in July, 1913. The proof showed that appellant killed the deceased by shooting him in the back with a pistol, and that in the same transaction he shot his wife, which resulted in her death. The jury found him guilty of murder with express malice — in effect murder in the first degree — and assessed the death penalty.

It is unnecessary, in the disposition we make of the case, to state the evidence. It was sufficient from the state’s standpoint to show murder in the first degree. It also raised murder in the second degree and complete justifiable homicide, as appellant himself testified that he caught deceased in the act of adultery with his wife at the time of the killing, and perhaps manslaughter. All of these issues were submitted to the jury by the court.

At the time the case was tried, the court, as well as the attorneys, it seems, believed the Indeterminate Sentence Act of April 3, 1913, p. 262, was valid. This act, after this trial, was held void in Ex parte Marshall, 161 S. W. 112. Being thus misled, the court did not tell the jury what penalty was au-’ thorized to be assessed for either murder in the second degree or manslaughter. Of course, this will not occur on another trial. There are other questions as tc¡ the validity of the charge in not expressly requiring the jury to find, in case they convicted of murder in either degree, of what degree they convicted appellant, and assess the penalty therefor in the event they did not assess it at death.

As the crime was alleged to have been committed prior to the act of April 3, 1913, amending our law on the subject of murder (articles 1140 and 1141, P. C.), this case must be tried under the law of murder as it existed at the time of the alleged crime, so far as the crime of murder is concerned (articles 15 to 19, P. C.). _ But, as the punishment for murder in the first degree is ameliorated, the new punishment must be charged, unless appellant himself elects otherwise, as prescribed by law. However, he must be tried according to the new procedure law, as amended and added to by the act of April 5, 1913 (articles 735 to 743). See Acts 33d Leg. e. 138. With the corrections indicated above, the charge of the court on murder in the first and second degree, manslaughter, and complete justifiable homicide are admirabie charges and substantially submit every issue raised correctly and in accordance with the evidence as the record before us shows it to be.

It is useless to discuss appellant’s first bill to the argument of the district attorney, as that matter doubtless will not occur on another trial.

It is our opinion that the statements of appellant’s wife, Jane Robbins, to the effect that she called somebody to come and help her, that she was dying, etc., and when the doctor did come to her she asked, “How was the poor man” (meaning deceased)? and that she exclaimed, when told, “Poor man! Poor man! He lost his life trying to protect me!” shown by appellant’s bills 3 and 4 of this record, are res gestee statements and were admissible as such. Rainer v. State, 148 S. W. 735, and authorities there cited. They were the transaction, the acts themselves, speaking, and although uttered by appellant’s wife and testified to by other witnesses, being res gestas, they were admissible as such. This question has been clearly and definitely settled by this court. In Cook v. State, 22 Tex. App. 525, 3 S. W. 751, this court said: “With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of Russell, they were admissible as verbal acts and were clearly parts of the res gestae, and consequently did not come within the rule announced in article 795 (775) Code of Criminal Procedure, which prohibits a husband and wife from testifying against each other in a criminal prosecution. * * * Mr. Wharton, in his work on Evidence, § 252, says: ‘It is in any view clear that declarations which are the immediate accompaniments of an act are admissible as part of the res gestee.’ Again, in section 263, he says that ‘the wife’s declarations, forming a part of the res gestee, are admissible against the husband.’ This doctrine is maintained in civil cases at common law. Johnson v. Sherwine, 3 Gray [Mass.] 374; Walton v. Green, 1 C. & P. 621; Gilchrist v. Bale, 8 Watts [Pa.] 355 [34 Am. Dec. 469]; Aveson v. Lord Kenard, 6 East, 188; Thompson and Wife v. Freeman, 1 Skinner, 420. At common law, the rule which in civil cases excluded the husband and wife from testifying against each other was the same as that which is announced by our statutes with regard to criminal cases. There is no law of this state which governs or regulates the admission of declarations of the wife affecting the husband, when they constitute a part of the res gestee; and, there being no specific rules prescribed by statute, other rules of the Code relegate us to the common law for the rules which are to govern. Code Grim. Proc. arts. 26 (27) and 783 (763). We shall therefore adhere to the common-law rule, as expressed in the authorities above cited, and hold the declarations of the wife admissible against the husband as a part of the res geste, for it is indispensable to a correct understanding of every transaction that every act attending it, verbal as well as physical, by whomsoever it may be committed, be placed before the court for its enlightenment. This rule as to res geste overrides all other rules known to the law governing the admissibility of testimony.”

The evidence of Dr. O’Earrel as to what the deceased told him when he first got to and examined the deceased and saw that he was fatally wounded, to the effect that appellant’s wife had appealed to him for protection early in the evening, and that she was there by his invitation so he could give her protection from her husband, Hose Robbins, who had threatened to kill her, shown by appellant’s bills 5 and 6, should not have been admitted. This evidence was in effect giving the hearsay evidence of the appellant’s wife, not in the presence or' hearing of the appellant, and was not admissible. For the error in admitting this testimony, this judgment must be reversed.

The testimony of Dr. O’Farrel and other witnesses of what deceased said as to how the shooting occurred and what occurred and was done and said by the parties at that time was clearly admissible, both as res geste and as dying statements. Appellant made ho objection to the introduction of that testimony.

The court did not err in permitting the state’s witness Robert Blair to testify that appellant, shortly prior thereto, had been indicted in Matagorda county for an assault with intent to murder his wife, and that that case was set for trial June 19th, just four days before appellant killed deceased and his wife. In addition to this witness’ evidence on this subject, the state also proved, by the copy of the proceedings in the case in Matagorda county, the same facts. All this was admissible; the state’s contention in this case being that appellant killed his wife to prevent her from testifying in said assault to murder ease, and the testimony tending to show that such was the case.

So was the testimony of the same witness for the same reason that appellant had cut up his wife, and that her face, breast, and forehead showed the scars therefrom which were committed by appellant on her which occasioned the said indictment in Matagorda county against him.

Appellant also objected to the testimony of said witness Blair to what appellant’s wife said to him of the threats appellant made against her the evening shortly before the killing, and she called on him for protection, and that he advised her to go to Mr. Blake, the deceased, for protection against appellant. We are unable to tell for certain •from the record whether what deceased’s wife said to this witness, in substance shown above, was in the presence or hearing of the appellant or not. If • he was present, or it occurred in his hearing, or he- knew thereof before the killing, such evidence would be admissible. On another trial this should be made more certain. If it did not occur in appellant’s hearing or in his presence, or he did not know thereabouts before the'killing it would not be admissible against him.

The state could show he knew or heard, etc., by circumstantial or direct evidence. La Grove v. State, 61 Tex. Cr. R. 170, 135 S. W. 121.

So the testimony of the state’s witness Bert Oarr, the deputy sheriff of Matagorda county, that the year before this killing, while appellant and his wife lived in that county, he had been called upon 18 or 20 times to protect her from her husband, appellant, would not be admissible, unless appellant knew of it at the time or it occurred in his presence. The record does not make it clear whether this occurred within appellant’s knowledge or notice or not. Whatever times, if any, the officer was called upon to protect appellant’s wife against him which were known to or occurred in appellant’s presence was admissible, but if it did not occur in his presence, or he did not know thereabouts, then it would not be admissible. The introduction or exclusion of this evidence can be properly controlled on another trial.

Clearly the testimony of the state’s witness, said Blair, to the effect that on the same evening, before the killing of deceased, he heard appellant curse his wife and accuse her of staying with other men was admissible and pertinent in this case.

For the error above pointed out, the judgment must be reversed, and the cause remanded.

DAVIDSON, J.

I agree to the reversal of the judgment on questions as decided. There are other rulings which show error. I will not discuss them. They may not arise upon another trial, or, if they do, may come in different form.

I cannot agree to the statement that murder in the first degree is in the case. As I understand the facts, there is nothing more than manslaughter in most favorable aspect for the state, and justifiable homicide for appellant. Deceased had taken appellant’s wife to his room, carried her trunk to the same room; it was at night; they had retired, one sleeping in one part of the room and the other in another part of the room. Appellant went to the room and found them in bed together and killed both, as his evidence shows. Dying declarations of deceased show he was going to the bed of appellant’s wife to notify her that appellant was coming, when appellant shot him. The mosquito bar over the bed of appellant’s wife had bullet holes in it. I do not care to elaborate. The judgment is properly reversed.  