
    TYLER TERM, 1892.
    [Note.—This case was decided at the Tyler Term, 1892, and should have been reported in 31 Texas Criminal Reports, but the record did not reach the Reporter until after that volume was completed.]
    I. J. Thompson v. The State.
    
      No. 52.
    
    
      Decided December 21, 1892.
    
    1. Impeachment of Witness—Evidence— Hearsay.—On a trial for murder, where a witness was asked, “ if after the killing, she did not make a certain statement as to the position of the parties (defendant and deceased) at the time of the shooting, and if her son did not correct her at the time, and state that they occupied a different position ?” to which question she answered that her son did not say anything to her about the killing: Held, that she could not be impeached by a third witness who testified that her son did correct her in the manner stated; and such impeaching testimony was hearsay, irrelevant, and that the remarks made by the son under the circumstances named were incompetent and inadmissible for any purpose.
    2. Murder of the Second Degree — Evidence Insufficient.— See facts stated which, in the opinion of the court, are held wholly insufficient to support a conviction for murder in the second degree.
    Appeal from District Court of Bell. Tried below before Hon. W. A. Blackburn.
    I. J. Thompson was convicted of murder in the second degree.
    This is the third appeal in this case. Thompson v. The State, 29 Texas Cr. App., 208; 30 Texas Cr. App., 325.
    As instructed by Presiding Judge Hurt in his opinion, we reproduce the evidence in full as shown by the statement of facts.
    Dr. L. J. Russell, sworn for the State, testified: I am a practicing physician. I knew W. T. Hall during his lifetime. He is dead. He died on the 30th day of December, 1889, at the Ayers ranch, four or five mile north of Rogers, in Bell County, Texas. I was called to see him on the evening of December 29, 1889, and found him suffering from a gunshot wound in the right side of his face and neck; in fact, a large portion of the right side of his face was torn off, and a portion of the right lower jaw was gone, and the left lower jaw was fractured. The charge entered from the front and tore the flesh and skin from the right side of the lower part of the face, beginning at about the middle part of the chin, and ranging backward to the side of the neck, tearing off the lower part of the ear. The track of the shot ranged slightly upward from the front towards the back at an angle of, perhaps, some 22j- degrees from a line drawn at right angle with the perpendicular of the body. The wound was a fatal one. Hall died from the effects of it on December 30, 1889, the next day after he was shot. I never told Hall that the wound was necessarily fatal, and that he would die from it. He was a strong, muscular man, and I didn’t know whether he would die or not, although I knew it was a very serious wound. I examined the premises where Hall was killed, and the following is a pretty nearly correct diagram of the house, yard, fence, and road. The gate is about 25 feet from the gallery, and the cistern is about 50 feet from the gate, and about 15 feet from the east end of the gallery.
    
      
    
    I saw a pool of blood in the yard a little to the right of the gate as I went in, and about six or eight feet feet from the fence. There were fresh shot marks on the cistern, to the right of the house as I went in the gate, and also on the posts and side of the gallery. The top of the cistern is about eighteen inches or two feet high, and there were a number of shot in it near the ground. The ground where the house, cistern, and gate are located is all about level; if anything, a little rising from the gate towards the cistern. I saw two pieces of human flesh sticking to the wall of the house inside the gallery. They were five or six feet from the floor. One piece was near the end next to the cistern, and the other on the west side of the door. The shot on the cistern and side of the gallery were not more than two feet from the ground. The shot appeared to be squirrel shot, about number eight. There were no wounds on the left side of Hall’s head and face. Hall was a large man, I suppose about six feet high, and would weigh 180 or 190 pounds. Hall is much taller than defendant. Defendant is a very low man.
    
      Dr. Price, sworn for the State, testified substantially as did Dr. Russell.
    J. A. Kiser, sworn for the State, testified: I knew W. T. Hall during his lifetime. He lived on the Ayers ranch, in Bell County, north of Rogers, at the time of his death. I was living on the ranch at the time, taking care of the stock. I lived with my family on the ranch about a half a mile from the main house where Hall lived. Hall is dead. He died on the night of December 30, 1889, from the effect of a gunshot wound received the day before. Hall had no family living with him on the ranch. Mrs. Dobbs kept house for him, and she and her daughter, about 12 years of age, lived there. I knew the defendant. He had been working for Hall and living in the house with him for about a month prior to the time Hall was killed. I never saw defendant until about the time he came to work on the ranch. On the night of December 28 defendant came to my house a short while after dark, and stayed about an hour or so. He then went out and stayed some little time, and then came back to my house and stayed all night. He said something about Hall’s being crazy or cranky, and that he supposed he was out of a job. I gathered from what he said, that he and Hall had had a difficulty, but paid no particular attention to it. The next morning he left my house early, saying he was going to Monroe Crow’s to see if Crow wanted a hand. He went off towards McCarty’s house. Soon after this I went up to Hall’s house to get a wagon, and while there Hall asked me if I had seen defendant. I told him defendant stayed at my house the night before. He said that defendant had meddled with his affairs, but when he got hold of defendant he (defendant) had wilted like a dog. I told him I didn’t have anything to do with their fuss, and didn’t want anything to do with it.
    Perhaps about 9 o’clock I was preparing to kill some hogs, and McCarty was at my house getting ready to help me, when defendant came back. He came to where we were fixing to put the hogs in the wagon, and I asked him if he couldn’t help us clean the hogs. He said, “ No,” he had on his best clothes and didn’t want to ruin them. He then said he believed he would go bird hunting, and asked if he could get my gun. I told him the gun was in the house, but that it was no good; that sometimes it would shoot and sometimes it wouldn’t. He went into the house, and I saw him loading the gun when McCarty and I drove off to the tank with the hogs. The tank was about three-quarters of a .mile from my house, and between a quarter and a half mile from Hall’s house. McCarty and myself had been at work at the tank cleaning the hogs for sometime when defendant came up the drain to where we were. He asked me if I saw Hall when I went to the house to get the wagon, and if he said anything about their row. I told him what Hall had said. He and McCarty had some talk about his hiring to McCarty, but I was busy working on the hogs and didn’t pay any attention to them. Defendant asked me if I had seen any birds, and I told him that I had seen a covey at the bull corral. He then left, saying he would go by there, and then go over on the creek. The corral is- in the same direction from us as Hall’s house, and the creek was over beyond the house from us. After a short time I heard the sound of a shot, and immediately afterwards the screams of women, in the direction of Hall’s house. McCarty and myself both started to the house, and on the way met Mrs. Dobbs, who was carrying my gun. She told us to hurry on to the house; that Hall was shot. We went on up to the house and found Hall lying about ten feet from the gate on the inside of the yard to the right of the path going towards the house. My horse was hitched to the fence near the house, and I got on him at once and rode off to Rogers for a doctor. I think Mrs. McCarty was near Hall when we got to the house; don’t remember seeing anybody else. I never saw the defendant after he left us at the- tank until I saw him here in court on his first trial. Mr. Hall was crippled in one arm; I can’t say which. I don’t know whether it was stiff or not. He could ' work all right. I have seen him plowing and cutting wood and doing other kinds of work. He was a large man, about six feet high, and I should guess would weigh 185 or 195 pounds.
    McCarty, a witness for the State, testified: I lived on the Ayers ranch at the time Hall was killed. I knew the defendant. ' He came to my house the morning of the killing. He got there early, before we had ■eaten breakfast. He said that he reckoned he was out of a job, and was going over to see if Monroe Crow wanted a hand; that old man Hall had fallen out with him the night before and abused him. He said, “ If I had known as much last night as I know now, I would have gotten $50 from my sister and killed old man Hall last night. ’ ’ He left my house and went in the direction of Crow’s. When he first came to my house he asked me if I had any 38-caliber cartridges. I told him I had none. I was at Kiser’s house when defendant came back. I heard him ask Kiser for his gun to go bird hunting, and saw him loading the gun as we drove off. Kiser told him the gun was no good, and I told him I had tried it a few days before, and it wouldn’t shoot. When defendant came to the tank where we were, he and I had some conversation about my hiring him. I told him I was thinking about renting some land from Hall, and if I did I would want to hire a hand, and would as lief have him as any other; that I was going to Rogers that evening with Hall, and would .settle the matter of renting the land, and let him know at once. I saw him go off towards the house with Kiser’s gun on his shoulder. He said he was going over on the creek. Soon after this, about long enough for Thompson to have gotten to the house, I heard a shot and the screaming of women in the direction of the house. Kiser and myself started towards the house, and on the way met Mrs. Dobbs. She had Kiser’s shotgun in her hand, and told us to run on to the house; that Mr. Hall was shot. We went on up to the house, and when we got to where Hall was, nay wife was holding his head, and trying to stop the blood with a towel. Hall was lying inside the fence, to the right of the path leading from the gate to the house, with his feet towards the gate, and his head up the fence away from the gate. He was some five feet from the gate. When I got to him I asked him how he got hurt, but couldn’t understand what he tried to say. We then concluded to get him in the house on the bed. We helped him up, and he walked from where he was into the house and to the bed. He didn’t seem so very weak, and walked with very little assistance from us. This all occurred in Bell County, Texas, on the 29th of December, 1889, and Hall died on the night of the 30th of December, 1889. Mr. Hall was crippled, I think, in his right arm. I am not certain, but think it was stiff. Have seen him plow and chop wood, and he could use it. He was a large man, about six feet high, and I suppose would weigh 180 or 190 pounds. Defendant is a much smaller man, is about five feet high, and I suppose will weigh about 130 pounds.
    The witness described the wounds, and the premises and the shot marks, etc., on the cistern and gallery as did the witness Russell. Witness stated, that Hall went to Galveston before Christmas; that witness went down to Cameron on the train on December 28, 1889; that he saw Hall on the train that evening as he came up from Cameron to Rogers. Hall asked him how things were getting on at the ranch. Witness answered, that everything was all right; that Thompson (defendant) had been having a fine time with his (Hall’s) widow (meaning Mrs. Dobbs); that he (Thompson) had carried her to three or four dances during Christmas week. Hall made no reply to this. Witness first saw defendant at Mr. Bingham’s, some three or four months before the killing. Mrs. Dobbs had been keeping house for Hall all the year before the killing. Witness never saw defendant from the time he left the tank till he saw him in court. Knew the sheriff of Bell County and his deputies searched for him soon after the killing, but knew nothing of the arrest.
    Mrs. McCarty, sworn for the State, testified substantially as did her husband, the witness McCarty, as to what was said to defendant at their house the morning before Hall was killed. That sometime before noon on that day her attention was attracted by a shot and screams in the direction of Hall’s house. She started towards the house, and when within about a hundred yards of the house she met the defendant and Mrs. Dobbs. That defendant had a double-barreled shot gun. She asked them what was the matter, and defendant replied, that he had shot Mr. Hall, and killed him. Witness asked what he killed Hall for, and he answered, “ I killed him because I had to do it.” Defendant then gave the gun to Mrs. Dobbs, and told her to return it to Kiser, and said he was going to give up to the officers. Witness and Mrs. Dobbs told him he had better leave the country, and save his body. He then started off, and I never saw him again until I saw him in court. I went on up to the gate in front of the house, and she went on down the road towards the tank, to call Mr. McCarty and Kiser. I went in the gate. Mr. Hall was just inside the gate. He was four or five feet from the gate, with his head up the fence away from the gate, and his feet towards the gate, sort of lengthwise with the fence. There was no one with him when I went in, and he was bleeding a great deal. The right side of his face seemed to be nearly torn off. I went to work to try and stop the bleeding, and in a little while Mr. McCarty came, and we got him in the house. Mr. TTa.11 died on the night of the next day after he was shot. This all occurred in Bell County, Texas, December 29, 1889. Mr. Hall talked some after he was shot. I was present a short time before he died, when he made a statement as to how Thompson came to shoot him. He asked where Thompson was. Somebody told him Thompson was in the brush. Mr. Hall then said, “ Thompson came to the gate and hallooed, Halloo!’ and said he had come to settle. I cursed him, and told him I had no settlement for him, and started to him. He got his gun, and raised it up, and told me to stop. I cursed him and told him I wouldn’t stop, and went on to him. He told me again to stand back. I told him I wasn’t afraid of him or his gun, and again cursed him, and told him I was certainly coming;” and Hall swore while he was telling it, and said he was not afraid of the gun. “He told me to stop again, and I didn’t stop, and he shot me.”
    Mrs. Whitaker, a witness for the State, testified: I knew the defendant, and met him for the first time the day before Mr. Hall was shot. I knew Mr. Hall during his lifetime. Mrs. Dobbs, who is my sister-in-law, kept house for Mr. Hall sometime before his death. I understood Mr. Hall was a married man, but he never kept his wife at the ranch. I saw a lady who was said to be his wife sometime in the spring before he was killed. I went over on a visit to my sister at Mr. Hall’s house two days before he was shot and met Mr. Thompson there for the first time. Mr. Hall was not at home when I first went there on this visit. They said he was in Galveston. The defendant went off to Rogers after dinner the day before the shooting, and about night he and Mr. Hall came home together. At the supper table that night, when we all sat down, the light was very dim and bad, and Mr. Hall said to Mrs. Dobbs, “This is a damned poor light for me to have to eat by.” She replied, that the oil was out and the lamp was burning low, and that she had forgotten to send the can to Rogers for more oil. Mr. Hall remarked, “ My business has been damned badly neglected since I have been gone.” Mr. Thompson then spoke and said, “ Mr. Hall, have I neglected any of your business while you were gone ? ” . Mr. Hall then turned to Thompson, put his hand on his arm, and cursed him, and said, “ Young man, whenever you neglect my business I will speak to you about it.” Thompson said no more, and Mr. Hall ate a few mouthfuls and left the table and went into the big room. Thompson finished eating his supper, and stayed at the table a good while after Mr. Hall left. He then got up and went into the big room. I heard some words pass between the two, and then saw Hall have Thompson by the arm; saw Thompson jerk loose and run out the door. After sometime Hall went out to his bedroom, which was a sort of office separate from the rest of the house, and in a little while I heard him call Mrs. Dobbs. She went out, and while she was gone Thompson came in the big room bareheaded, and went and got his hat and went out the door. After that Mrs. Dobbs came in the big room, and sometime after I heard Mr. Hall walk out on the gallery.
    About 10 o’clock that morning Mr. Hall and I were sitting in the big room by the stove. I happened to look out the door, and saw Thompson going by the gate with a gun on his shoulder. He was going towards the tank at the time. He did not turn his head or look towards the house after I saw him. I know he did not, because I watched him closely. When I saw him with a gun, after what had passed the night before, I was afraid he would come in, and I watched him closely. In something like half an hour, Mr. Hall and myself were still sitting by the stove when somebody hallooed, “ Halloo ! ” at the gate. I looked out and saw Thompson standing at the gate, and his gun leaning against the fence about six or eight feet to his left. Mr. Hall said, “ Halloo ! come in,” and then got up and went out on the gallery. Thompson said, “ Mr. Hall, I have come for a settlement.” Hall cursed him, and said he had no settlement for him. Thompson then said, “Mr. Hall, haven’t I done good work for you?” and Hall then asked him how much he claimed. Thompson said he claimed 83. Hall cursed him, and told him he would never get it. Thompson then asked if he could come in and get his clothes. Hall cursed him, and said he could get his clothes, but that was all he could ever get. Thompson then started in the gate, and Hall stepped down off the gallery and started towards Thompson, cursing him in a loud and angry tone as he went. Thompson backed off towards the gun, saying something in a low tone which witness did not hear. Hall continued to advance on Thompson, cursing him as he went. Thompson picked up his gun and stepped back two or three steps into the road, raising the gun and telling Hall to stop at the same time. By this time Hall had gotten to the gate, and as he pulled it open, defendant raised his gun to his shoulders, pointing directly at Hall, and in a loud, shrill tone, that witness said she would hear to her dying day, said, “ Stand back, Mr. Hall, or, by God, I will kill you.” As Thompson said this, witness covered her eyes with her hands, and the next moment she heard the report of a gun.
    Witness heard all Mr. Hall said, because he spoke in a loud, angry tone. She did not hear everything Thompson said, because he spoke in a low, quiet tone of voice. The only oath she heard Thompson use was the words he spoke just before the shot was fired, and that was the only time he spoke loud; and while defendant was backing off towards his gun, and while he kept telling Hall to stop, he kept looking back over his shoulder, and “ I thought he was getting ready to run.” When witness again looked out of the door she saw Hall’s feet near the path, and saw defendant come into the house with the gun in his hands. She and Mrs. Dobbs and Mrs. Dobbs’ daughter were all screaming by this time, and defendant tried to pacify them. Witness was very much excited, and ran upstairs to a window, and screamed as loud as she could to give the alarm. She then came down stairs, and went out south of the house and screamed again. By this time she saw Mrs. Dobbs and Mrs. McCarty at the gate, and when Mrs. McCarty came in the gate to where Hall was lying witness went out and carried her a basin of water and some towels. Witness did not go .near Mr. Hall herself, or try to help him in any way, because she could not stand the sight of the blood, which made her sick and faint.
    Witness had no recollection that when she and Mrs. Dobbs were telling old man Whitaker, in the presence of Mrs. McCarty, how the killling occurred, her son Bob Whitaker spoke up and said, “ No, mamma, that aint the way it was. Mr. Hall was leaning over the gate when Mr. Thompson shot him.” Witness never heard him say anything of the sort. Witness was not interested in the defendant in any way whatever; had never seen or heard of him until a day or two before the difficulty, and had never seen him since, except in the court room when he was on trial; had never talked to any one about wba.t she would swear. If her sister-in-law, Mrs. Dobbs, was interested in Thompson in any way, witness knew nothing of it. Witness had nothing to do with the absence of her son Bob Whitaker from this trial. “ When the officers came for my son Bob he was away from home, and I understood he ran from them. I knew nothing about it myself.”
    D. T. Ayers, a witness for the State, sworn, testified: W. F. Hall was my brother-in-law. I have known him for a number of years. I don’t know his exact age, but the best I can tell from the records he was born in 1832, and was 57 or 58 years old when he was killed. He was crippled in his right arm. He was wounded in the arm while serving as a soldier in the Confederate army, and his arm was stiff. Witness stated he examined the premises where the shooting occurred, and testified as to the diagram, appearance of shot, etc., substantially as did the witness L. J. Russell.
    S. A. Sparks, a witness for the State, being sworn, testified: I was sheriff of Bell County at the time W. F. Hall was killed. I went down as soon as I heard of the killing—the next day—and with two or three of my deputies searched the country carefully for defendant for two or three days after the killing. I failed to find him or hear of him. In the meantime I advertised for him in the Galveston News, and offered a reward of 825 for his arrest. About the 19th of January, 1890,1 received word from the sheriff of Ellis County that he had arrested the defendant, and I went up there and got him.
    Grizzard, witness for the State, sworn, testified: I was sheriff of Ellis County in 1890. I saw an offer of reward by Sheriff Sparks in the News, and on the 19th day of January I approached defendant on the streets of Ennis and asked him if he was J. D. Thompson. He said “No.” I arrested him, and was about to telegraph for somebody to come up and identify him, when he. talked with his brother, and told me he was the man I wanted.
    Mrs. Dobbs, a witness for the defendant, testified: I know the defendant. Knew W. F. Hall during his lifetime. I had been keeping house for Mr. Hall about a year before he died, on the 30th day of December, 1889. I lived in the house with him and did the cooking and housekeeping. My two children lived with me, the oldest a girl of about 12 years. The defendant came to live at the house about a month before Mr. Hall was killed. He worked for Hall, and lived at the house like one of the family. • Mr. Hall went to Galveston about a week before he was killed, and left defendant and myself at the house while he was gone. I never-stayed in the house with defendant alone while Mr. Hall was gone. One of my brothers stayed most of the time. My sister-in-law, Mrs. Whitaker, came over a day or two before Mr. Hall got back, and was there when he came back. He came back on the 28th of December, the day before he was killed, about dark. Defendant went to Kogers to meet him at the train, and they came home together. At the supper table that night the light was rather dim, and Mr. Hall remarked to me in a rough manner and with an oath, that the light was mighty poor to eat by. I told him that the oil had burned low, and I had forgotten to send the can to Rogers for more oil. He then said that his business had been damned badly neglected since he had been away. Defendant, who was sitting by him, then spoke up and said, “Mr. Hall, have I neglected anything while you have been gone?” Mr. Hall then caught defendant by the arm, and cursed him, and said, “ Young man, I wasn’t talking to you. When you neglect my business I will speak to you about it.” Defendant then said, “ Mr. Hall, I beg your pardon. I thought you were talking to me,’ ’ and said no more. Mr. Hall ate a few mouthfuls, and got up and went into the big room. Defendant stayed at the table for sometime longer, and finished his supper, then got up and went into the big room, when Hall commenced on him again, cursing and abusing him. Defendant seemed to be trying to apologize and explain. Finally I saw Hall grab defendant by the arm, and before he did this I saw him push a knife up his right sleeve; they scuffled a little, and defendant jerked loose, and ran out of the front door, bareheaded. After a while Hall went out to his room, and I heard him rumbling around out there, and at last he called me to come out there. I went to his room, and he told me to make down a pallet for defendant out in his room, and let my company sleep in the room defendant had been occupying, which was upstairs. I didn’t say whether I would or not, but went on back in my room. After that I heard Hall walk out on the gallery.
    Next morning, when Hall got up, he asked me if defendant had come down or not. I told him he had not. He then said defendant was neglecting his business, and he would tell him about it. I told him I didn’t think defendant was much account, or he wouldn’t have taken what he did the night before. Hall said, ‘ ‘ God damn him, he had to take it. If he hadn't weakened I would have killed him.” I told him, “Yes, I saw that he was fixed.” He looked at me and didn’t say anything more then. When Hall found out that Thompson hadn’t come back the night before, he said, “ God damn him, he will come back to-day after his clothes, and I am going to be here when he comes and am going to fix him.” He then asked me if Mr. Day had brought his gun home. I told him that he had not. Along towards noon I heard somebody halloo, “ Halloo !” at the gate, and looked out and saw the defendant at the gate. Mr. Hall got up and went out on the gallery and said, “Well, by God, what will you have, sir?” Thompson said, “I have come for a settlement.” Hall said, with an oath, “I have no settlement for you.” Thompson said, “ Mr. Hall, haven’t I done you good work ? ” Mr. Hall said, “How much do you claim I owe you?” and Thompson answered, “ You owe me three dollars.” At last Hall told Thompson he could come in and get his clothes, but that was all he could get. Thompson started in the gate, when Hall commenced cursing him again, and said, “ God damn you, I had rather kill you than to kill a God damn dog,” and as he said this he stepped down off the gallery and started towards defendant, who backed off and got his gun, which was leaning against the fence on the outside. Hall continued to advance on defendant, who stepped back a step or two into the road and raised the gun and told Hall to stop. Hall went right on, cursing defendant as he went. Defendant again told Hall not to come out. Hall continued to advance, cursing defendant as he went, and just as he pulled the gate open and stepped into it defendant cursed him and told him to stand back or he would kill him, and as Hall took the next step towards defendant the gun fired. Hall staggered back a step or two, then staggered forward, then turned, and fell with his head up the fence east and his feet towards the gate. I commenced screaming as loud as I could, and the next thing I remember was seeing the defendant in the house with the gun in his hands and trying to get us to stop screaming. The next thing I remember is starting down to Mrs. McCarty’s, and either meeting or catching up with defendant or his catching up with me near the barn, about sixty yards east of the house. I don’t know how we got together there. We went on down the road, and a little piece further met Mrs. McCarty. She asked what was the matter, and he told her that he had shot Hall. She asked him what he did it for, and he said, “1 had to do it.” He then gave me the gun and asked me to return it to Kiser, and then said he was going to give himself up. Mrs. McCarty and myself told him that he had better leave the country, as a Bell County mob would hang him if he stayed. He then went off across the fields, and Mrs. McCarty and myself went on up the road to the house. She went in the gate and I went on to call Kiser and McCarty. I never saw the defendant from the time he left us there in the road until after he was arrested.
    On cross-examination witness said: I know that it is a fact that defendant killed Mr. Hall on account of me. I have visited defendant in jail since he was arrested. On one occasion, when the jailor let him out of his cell when I went to see him, I kissed him, but I did not hug him. I have frequently written letters to defendant, and received letters from him since he has been in jail. It is not a fact that I have employed counsel to defend him, Or assisted to employ any counsel. On one occasion, a short time before Mr. Hall went to Galveston, he picked up a bottle of medicine that was in the house and asked me whose it was. I told him it was Mr. Thompson’s. He then said that showed Thompson was no gentleman; that he had some private disease. I made no reply to this, and afterwards, when he was in Galveston, Mr. Kiser was up at the house one day, and I told him what Mr. Hall had said about Thompson and the medicine, and asked him what Hall meant by it. Kiser said he didn’t know. Hall never told me that Thompson had a private disease, and that I must not have anything to do with him, and I never told Kiser that he did. I did not tell Mr. Wilson, a few days after the shooting, that I was standing in the door, laughing, when the defendant shot Hall; that I was laughing because I didn’t believe defendant would shoot, but thought that he would run like he did the night before. Mrs. Whitaker’s son Bob never corrected me or his mother in my presence, when we were telling old man Whitaker about the shooting, and said, “ Mamma, that’s not the way it was. Mr. Hall was leaning over the gate when Thompson shot him.”
    Jim Whitaker, a witness for the defendant, testified: Mrs. Dobbs is my sister, and the witness Mrs. Whitaker is my sister-in-law. I was at Hall’s house the night he died. About an hour before he died he spoke to me and asked me where Thompson was. I told him Thompson was in the brush. Mr. Hall then said: “ Thompson hallooed at the gate. I asked him what he wanted. He said he had come for a settlement. I cursed him, and told him that I had no settlement for him. He started in the gate, and I stepped down off the gallery and started at him. He backed off and got his gun, and told me to stop. I went on to him, cursing him, and telling him I wouldn’t stop. He raised the gun, and told me to stop again. I cursed him, and told him I wasn’t afraid of him, and that I was certainly coming to him. He told me to stop again, but I went on to him, and he shot me.” Witness, in answer to questions by State’s counsel, said that Mr. Hall was a very wicked man, and in the habit of cursing a great deal. Hall was a large man. ' If he was a cripple witness did not know it; had known Hall for sometime; had seen him chop wood; did not seem to be disabled in his arm.
    I. J. Thompson, defendant, sworn in his own behalf, testified as follows: I first came to Bell County about the middle of November, 1889, from Ellis County. I picked cotton for Monroe Crow a short time, and about the second week in December, 1889, I hired to W. F. Hall, and went to work on the Ayers ranch. Mrs. Dobbs (his housekeeper), her daughter, about 12 years old, her little boy, Mr. Hall, and myself lived at the house from the time I hired to him till the 29th day of December, 1889. Just before Christmas Mr. Hall went to Galveston, and left the farm and farming stock in my charge. The day before he left we had a conversation, and he told me he was thinking of quitting the ranch, and if I wanted the job he would recommend me to Ayers to superintend the farm, and that would pay me better than the job I had. I carried him to Rogers to meet the train, and he was very friendly and pleasant all the evening. On the evening of December 28 I met hita at the train at Rogers when he came back from Galveston, to carry him out to the ranch. When the train came in, and he got off, I walked up to him and spoke to him in a pleasant way, and was very much surprised when he replied in a very rough and insulting manner. I noticed that McCarty got off the train with him. Hall and myself went out to the ranch together, and he seemed to be in a very bad humor all the way, saying but little to me, and when he did speak to me, doing so in a slighting, ill-natured way. I avoided crossing him, because I saw he was mad, and thought maybe he would get all right after a while.
    At the supper table that night the light was dim, and he spoke to Mrs. Dobbs in a very rough manner about the light. She made some excuse, and he then remarked, “ My business has been damn badly neglected since I’ve been gone.” I thought he was talking to me, and I spoke and said, “Mr. Hall, have I neglected any of your business?” He turned round on me in a very angry manner, caught me by the shoulder, cursed me for a son-of-a-bitch, and told me not to put in unless I was spoken to; that he was not speaking to me; that he would tell me damn quick if I neglected his business. I told him why I had spoken, and said no more. After eating a little while he got up and went in the big room. I finished my supper, and went in the room. He was standing up by the stove, and as I walked into the room he said, ‘ ‘ Thompson, things have come tO' a damn pretty pass when I can’t speak to the madam without you meddling.” I tried to explain to him again that I thought he was speaking to me, and 1 didn’t want to meddle. I thought he was drinking, and tried to pacify him. He seemed to get madder and madder, and finally grabbed me by the arm, and cursed and abused me for all sorts of things. When he caught me by the arm I saw that he had an open knife in the other hand. I finally jerked loose from him, and went out the door. I still thought he was drinking, and after turning the calves out from the cows, concluded to go over to Kiser’s and stay until bedtime, and that he would be all right in the morning; but when I got back from Kiser’s I saw Hall and Mrs. Dobbs in Hall’s room, and as I passed the window I heard him tell her to make down my bed on the floor in his room, and I concluded from the way he talked that he wasn’t drunk, and that I didn’t want to sleep in the house with him, so I went into the house and got my hat, and went back and stayed all night with Kiser.
    The next morning I went over to Monroe Crow’s and got back to Kiser’s about 9:30 or 10 o’clock. Kiser and McCarty were getting ready to clean some hogs and wanted me to help them. I told them, “ No; ” I had on my Sunday clothes and didn’t want to soil them. I then concluded to go bird hunting, and asked Kiser to lend me his gun. He said that it was no good; that sometimes it would shoot and sometimes it wouldn’t, but that I could take it out and try it; that Mrs. Kiser would show me where the ammunition was. I got the gun and found one barrel loaded and one barrel empty. I loaded the other barrel with No. 8 shot, which I found in the shot sack. I took the gun and went out through the fields looking for birds, but found none, and finally went by Hall’s house up to the tank, where they were cleaning hogs. I stopped there, talking to them, for sometime, and asked Kiser if he knew where there were any birds. He said he had seen a covey up at the bull corral, and I went on up to it, but found no birds. I then concluded to go over to Rogers with McCarty, who told me he was going that evening, and went down to the house, which was right near, to get three dollars Hall was owing me for work, because I wanted some money to spend in Rogers, and had none. When I got near the gate I set the gun down against the fence, about six feet to the left of the gate. The fence was a wire fence, and I leaned the gun against the wire, I then walked to the gate, and said, “Halloo! ” Hall came to the door and said, “ Halloo! what do you want F” I replied that I wanted him to settle with me for my work. He answered, “ God damn you, I have no settlement for you.” I then said, “ Mr. Hall, haven’t I done you good work F ” He said, “ Yes, your work is all right, but I didn’t hire you by the day. I hired you by the month, and you haven’t worked a month.” I told him I couldn’t work for any body who treated me like he did; that I hired to work and not to be treated like a dog. He then asked me how much I claimed he owed me. I told him three dollars. He then said I would never get a damn cent of it. I then said we would see about that later, and asked him if I could come in and get my clothes. He said, “ Yes, you can get your clothes, but that is all you will ever get.” I then started in the gate, and he stepped down off the gallery, meeting me, cursing me as he came. When he first stepped down he said, “I would rather kill you than to kill a damn dog.” When he started out to me I didn’t turn around, but just backed off, and, as I did so, said, “ Mr. Hall, for God’s sake, stop, and have some reason about you. I didn’t come here to have any fuss with you.” He didn’t pay any attention to what I said, but came right on, cursing me as he came. I backed off down the fence to my gun, still begging him to stop. I picked up the gun and backed off two or three steps in the road, raising my gun to my shoulder as Hall advanced, and telling him all the time to' stop. At last he reached the gate and pulled it open with his left hand, at the same time running his right hand in his pocket, and stopping in the gate and saying, “Oh, God damn you, I am not afraid of your gun, and I am surely coming to you.” As he stepped in the gate and said this I aimed the gun at his head and hallooed to him as loud as I could, “ Stand back, God damn you, or I will shoot you.” He didn’t stop, and I pulled the trigger, and the gun fired. He staggered backward two or three steps toward the house, sort of steadied himself, and I thought he was coming at me again, but he staggered toward the gate a step or two and fell off to the right of the gate.
    The women commenced screaming, and I went into the house to try to quiet them. Mrs. Dobbs ran out of the house, and I caught up with her out near the barn in the road. I started on toward Kiser’s, and met Mrs. McCarty and told her what had happened, and told her that I was going to give myself up. Mrs. McCarty and Mrs. Dobbs told me that I had better leave the country; that a mob would hang me. I gave the gun to Mrs. Dobbs and told her "to give it to Kiser, and started off and got some distance, and then came back and told them I thought it would be best for me to go in and give up. They again persuaded me to leave the country, and"! concluded to go to my brother’s in Ellis County till the matter sort of cooled down. This all occurred in Bell County, Texas, on the 29th of December, 1889. I stayed at a house about six miles from there that night, and in a few days made my way to the house of my brother in Ellis County. On the 19th of January, 1890,1 went to Ennis with my brother, and just before we got ready to go out of town Sheriff Grizzard came up and asked me if I answered to the name of J. D. Thompson. He then asked me if I had ever been in Bell County. I told him “ No.” He then carried me to his office, and after consulting with my brother, I told him that 1 was the man he wanted, but that my name was I. J. Thompson. I "have been in the Bell County jail something over eighteen months. When I went to Hall’s house I had no idea of having a fuss with Hall or shooting him.' I thought that he would be cooled down, and that I could get my money and clothes without any trouble. When I saw how mad he was I did my best to pacify him. I spoke to him in a quiet tone, and the only oath I used was the time I spoke to him just before the gun fired. When I saw him run his hand in his pocket I thought he was after his knife. Hall was about six feet high and weighed about 200 pounds. He was very strong and muscular. I am now 28 years old. I am five feet high, and when I am at myself weigh 125 pounds. I don’t weigh but about 100 pounds now. I don’t remember whether I went to any dance with Mrs. Dobbs the Christmas before Hall was killed or not. I think I did.
    J. A. Kiser, in rebuttal, testified: While Mr. Hall was at Galveston, my wife and myself were up at his house, and Mrs. Dobbs called me into Hall’s room, and told me that Hall had found a bottle of medicine in the house; had asked her whose it was, and she told him Thompson’s. Hall had then told her that Thompson had a private disease, and that she mustn’t have anything to do with him while he was gone.
    Mrs. McCarty, in rebuttal, testified, that a short time after the shooting, old man Whitaker came to Hall’s house, and while Mrs. Whitaker and Mrs. Dobbs were telling him how the shooting occurred, Mrs. Whitaker’s little boy Bob corrected his mother, and said, “No, ma, that ain’t the way it was. Mr. Hall was leaning over the gate when Mr. Thompson shot him.”
    Sam Wilson, a witness for the State, said: I had a conversation with Mrs. Dobbs after Hall died. In telling me about the difficulty she said she was standing in the door, laughing, when Thompson shot Hall. She said that she didn’t think Thompson would shoot; that she thought that he would run like he did the night before.
    
      James Boyd and John B. Durrett, for appellant.
    
      JR. H. Harrison, Assistant Attorney-General, for the State.
   HURT, Presiding Judge.

This is a conviction of murder in the second degree. The State introduced as a witness Mrs. Whitaker, by whom it proved the circumstances attending the killing. Not being satisfied with her version of the transaction, she was asked by the district attorney: “ Did not your boy, Robert Whitaker, say to you when you were relating to Mrs. Kiser and her husband how the killing occurred, “ That the deceased left the gallery and went to the yard fence, where defendant was standing, saying to him, “ God damn you, I would as leave cut your throat as’ I would a damn dog,” and saying, “ You need not think I am not coming, for I am,” and that defendant stepped back two or three steps, got his gun, which was leaning against the fence, and told deceased not to come any nearer or he would shoot him, when he shot and killed deceased,’ and that your boy stepped up and said, No, ma, that was not the way it was. Old man Hall was leaning over the fence when he was shot.’ ” Mrs. Whitaker answered, that her boy Robert did not say anything to her about the killing, whereupon the State placed upon the stand Mrs. McCarty and proved that the boy did use the language to his mother under the circumstances above described; to which appellant objected, because irrelevant and hearsay. What the boy said, if he said anything, was not competent evidence, and hence could not be made the basis of impeachment. If what he said was a fact, the State should have had him on the stand and proved it by him. The remarks of the boy, if he made any, were not admissible for any purpose, and there was error in receiving them in evidence.

We have given the statement of facts a very careful examination, and the Reporter will give them in full, and the conclusion reached is, that the evidence does not warrant a conviction for murder. If appellant is guilty of culpable homicide, it certainly is not of a higher grade than manslaughter.

The judgment is reversed and the cause remanded.

Reversed and remcmded.

Davidson, J., disqualified.  