
    HENDRIX v. STATE.
    (No. 10487.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.)
    J. Criminal law @=>368(3) — Testimony of statements to witness, some 20 minutes after burglary, as to identification of defendant, held inadmissible.
    Testimony of statements to witness relative to identifying defendant, made some 20 minutes after burglary and assault, held erroneous, as not properly being part of res gestse,
    2. Criminal law @=>363 — Prerequisite of res gestse statement is spontaneity.
    Prerequisite of res gestse is spontaneity, and this is deduction from facts, which are usually necessary to show that there had been no change in mental condition of party from time of occurrence until statement was made.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Dutch. Hendrix was convicted of burglary, and he appeals.
    Reversed and remanded.
    Bryant & Goar, of Wortham, and P. O. French, of Fairfield, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Freestone county of burglary; punishment, five years in the penitentiary.

There is but one bill of exceptions, by which complaint is presented of the admission of the testimony of witness Perkins, who gave evidence of the fact that some time after the commission of the alleged offense, and upon the same night, the owner of the allfeged burglarized premises came to his house and told him that appellant and another were the parties who committed the offense. This was admitted by the court upon the theory that it was res gestse. .

The home of Alfred Dunbar was entered in the nighttime by two persons, who broke into a room occupied by the two daughters of Dunbar, and began an assault upon said two girls, who gave the alarm, and Dunbar went into the room with a shotgun, and in the difficulty that ensued fired his shotgun twice and the marauders made their escape. The defense was alibi. Dunbar, his wife, and daughters testified to the identity of appellant as one of the two men. .By a number of witnesses appellant sought to establish that he was at another and different place on the night in question. The issue of identity was sharply contested.

The witness Perkins said that he lived 300 or 400 yards from Dunbar’s house, maybe a little farther; that he heard the shooting there on the night of the alleged burglary— heard two shotgun shots first, and later a pistol. On direct examination he testified that Dunbar came to his house that night, about 15 or 20 minutes after the gun fired, might have been 15 or 25 minutes, and when he w-alked up to witness he said: “Did you hear the trouble I was in down there?” Witness replied that he. heard the shots, and asked what it was, and who they were, and Dunbar replied: “Dutch Hendrix and Clarence Banks.” On cross-examination this witness testified: “I heard the pistol fire one time after the two shots from the shotgun;” that the pistol shot was about 25 minutes, possibly, after the shotgun was fired, and after the pistol was fired Dunbar came to his house.

We have examined the bill of exceptions, as well as the testimony of this witness, set out in the statement of facts, and find in neither any showing of excitement, .agitation, or other facts supporting the proposition that when Dunbar reached the home of Perkins he was in such condition as seems made requisite, under all the authorities, in order to make such statement admissible as part of the res gesfee. The prerequisite of a res gestse statement is spontaneity, and this is a deduction from facts, and such facts are usually necessary as would show there has been no change in the mental condition of the party making the statement from the time of the occurrence until the statement is made. We know of no authority holding that one who makes a statement 15 or 20 minutes after the occurrence, which statement is made calmly and coolly and collectively, can have the statement held admissible on the theory of res gestse.

Statements made 15 minutes after a homicide, not shown by the bill of exceptions to have been made under agitation or excitement, or without break, were held inadmissible in McNeal v. State (Tex. App.) 43 S. W. 792. See Brown v. State (Tex. Cr. App.) 44 S. W. 174; Ford v. State, 40 Tex. Cr. R. 283, 50 S. W. 350; Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496. It is said there is no limit of time in which the res gestae are arbitrarily confined, but that they vary with each particular case, and that they need not be coincident as to time, if they are joined by the existing feeling without break or letdown, from the moment of the event they elicit. McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175; Rainer v. State, 67 Tex Cr. R. 87, 148 S. W. 735. It is also stated that statements made in response to leading questions which have not the elements of in-stinctiveness or spontaneity are not admissible. Faulkner v. State, 43 Tex. Cr. R. 325, 65 S. W. 1093; Chapman v. State, 43 Tex. Cr. R. 338, 65 S. W. 1098, 96 Am. St. Rep. 874; Lockhart v. State, 53 Tex. Cr. R. 593, 111 S. W. 1024.

Being unable to find justification for the admission of this testimony, the only possible claim for same being res gestae arising from tbe fact of tbe nearness in point of time, and there being no showing of any of. the other requisites of res gesta, we are constrained to hold the admission of this testimony erroneous. It was upon a very vital issue in the case, and may have been appropriated by the jury to the injury of the appellant.

For the error of the court in admitting same, the judgment is reversed, and the cause remanded. 
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