
    FLEMING v. STATE.
    (No. 8958.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.
    State’s Rehearing Denied June 24, 1925.)
    1. Homicide <&wkey;2l5(4) — Recital in dying declaration as to use of force by accused in another matter admissible.
    In prosecution for murder of wife, where dying declaration assumed to relate circumstances and facts leading up to killing, recital that accused had tried to force son to go with him to visit his brothers held not improperly received, being merely in the manner of a shorthand rendition of facts.
    2. Homicide &wkey;>300(7) — instruction on self-defense, requiring accused to use every other available and reasonable means for prevention, erroneous.
    In prosecution for murder of wife, where father of accused, who was violent and dangerous man, was coming at accused with a knife, and latter’s wife was abetting father with an old auger, self-defense instruction, requiring that accused resort to every other available and reasonable means for prevention of injury, except retreat, held error as being inapplicable under the facts.
    3. Criminal law <&wkey;1038(1)— Objections to instructions not raised before motion for new trial not reviewable.
    In murder prosecution, objections to manner in which theory of accidental shooting was submitted, not raised other than by motion for new trial, held not reviewable.
    4. Criminal law c&wkey;ll22(4) — Failure to instruct on presumption of jntent, arising from nature of weapon used ⅛ assault on defendant, held not error, in view of record.
    In prosecution for murder of wife, where defense was that father of accused, who was violent and dangerous man, was coming at him with a knife, aided and abetted by wife of accused with an old auger, and that wife was accidentally shot while accused was trying to keep his father back with a pistol, failure to instruct on presumption of intent, as embraced in Pen. Code 1911, art. 1106, held not error, in absence of showing in record as to whether weapons used by father and wife were of deadly character.
    On Motion for Rehearing.
    5. Homicide <&wkey;>220 — Declarations of deceased admissible to contradict her dying declaration, . indicating' intentional killing.
    In prosecution for murder of wife, admission by deceased shortly after shooting that it was accidental and not intended, and that she forgave husband, held competent to contradict dying declaration, indicating that killing was intentional.
    6. Criminal law <&wkey;364(6) — Statements of accused to brother, who arrived 15 minutes after killing, admissible as res gestae.
    In prosecution for murder of wife, where, immediately after shooting, accused called doctor and then his brother, giving no explanation to either, and saying nothing until arrival of brother some 15 minutes later, -statements of accused to brother, detailing accident, held part of res gestas, and should have been admittted.
    Appeal from District Court, llano County; J. H. McLean, Judge.
    Homer Eleming was • convicted of murder, and he' appeals.
    Reversed and remanded.
    Coke R. Stevenson and M. E. Blackburn, both of Junction, E. J. Dalrymple and P. J. Johnson, both of Llano, and Watson & Chap-in, of San Antonio, for appellant.
    E. H. Hammond, Dist. Atty., and Geo. E. Christian, both of Burnet, Wilson & Wilson, o'f San Antonio, and Fred E. Knetsch, of Seguin, Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for life.

The facts, to some extent, are embraced in the opinion of this court in Ex parte Fleming, 97 Tex. Cr. R. 305, 261. S. W. 1037.

Annie ¡Fleming, wife’ of the appellant, received a gunshot wound, from which she died.

From the dying declaration of the deceased, introduced by the state, we take the following:

“I got my things fixed up then so I could go down to Mama’s. So after dinner he fooled around. I was.not going to leave until after he left.- So he took his shoes down to the ear and fooled around there, and then started back, and I saw him talk to Mr. Anderson awhile. So he came into the dining room, and tried to get Sonny Boy to go over -to Oil’s with him. He wouldn’t go, and he tried to force him to go. And Son told him he would go some other time; that he wanted to go down to Uncle Bill’s with me. So Sonny Boy liept coming into my room, and Grandpa was sitting in his big chair, and I told Homer, so he was standing right there in that door, and I told him that I was going to Mam’s, and would be gone several days. I saw him pull his pistol out, and, I don’t know, I believe he fired one shot at Grandpa. I don’t know. So I had an old piece of iron there in my room, and I grabbed it, and tried to hit the pistol out of his hand, and Son just ascreaming right at my heels. And I saw the fire of the pistol, and he hit me, and I fell right there on that rug by the dresser. And Mrs. Anderson and Grandpa managed to get me up on the bed some way. And I told Grandpa to phone for the doctor, and I think Homer phoned for the doctor.”

The tragedy took place at the home of O. B. Fleming, father of the appellant, at which it seems the appellant and his wife resided, though they did not live together as husband and wife. ' They had a son, a small boy, who, according to the appellant’s testimony, it had been his custom to take with him on occasions. On the day preceding the homicide appellant and his wife had engaged in a quarrel about the whipping of a dog, and the father of the appellant had interposed. He and the appellant engaged in a quarrel. Immediately before the homicide the appellant’s father, was sitting by the fire with a knife in his hand which he was using to open pecans. Appellant, intending to spend the night with his brother, asked the boy if he would like 'to go with him. Upon the boy indicating that he would, the father became angry, rose to his feet with the knife in his hand, and said that the boy should not go. According to the appellant, hot words followed, and his father, who was a vigorous and dangerous man, advanced upon the appellant with a knife in his hand, endeavoring to strike him. Appellant retreated, holding his pistol in his hand, and finally fired a shot for the purpose of deterring him, but not with the intention of killing him. Appellant was engaged in backing out of the room, and did not see the wife at the time he fired at his father, but, as he was backing out, she advanced upon him with an" auger in her hand. According to the appellant, “she rushed up behind father with that auger and began striking at me. She come up to the right of my father, and was striking at me with that auger, and when they come up I backed then into the room — backing away from both of them. They were both right at me, and father was cutting at me with this knife.” The appellant’s wife struck him across the sleeves a time or two, and the blows were knocked off. ' Appellant presented his gun at his father, and commanded him to'stop. She struck him, and tried to knock the gun out of his hand, and also grabbed his hand and pushed it over her shoulder when the gun was discharged and she fell on the floor. He had no intention of shooting her at that time; neither did he have any idea of killing her. He was using the gun in order to prevent his father from cutting him with the knife.' After his wife fell, he ’phoned for a doctor, and did what he could to relieve her suffering. He also ’phoned for his brother. He was crying, broken down, and scared to death.

The knife which the appellant claims was used by his father and the piece of iron which he claims was in the possession of his wife were introduced in evidence.

It appears from a bill of exceptions that after the appellant had telephoned for a doctor and for his brother, but before either of them arrived, and at a time when he was in tears and under excitement, he said to his wife: “You know that it was an áccident, and I did not intend to shoot you,”* to which she replied: “I know it, and I forgive you, and want you to forgive me.” The exclusion of this testimony is made the subject of complaint.

Mrs. Nora Anderson, who was present in the house at the time, described the encounter in substantial accord with the appellant’s version, and testified that immediately after she was wounded the deceased was placed in bed by the witness and O. B. Fleming, and the deceased said: “Mrs. Anderson, protect my child. I don’t care for him taking the boy.” The witness said that deceased then talked to Mrs. Fleming, and stated that she was going to die; that she wanted Mr. and Mrs. Huffman to have the boy. The doctor, who arrived a short time subsequent to this conversation, said that upon his arrival Mrs. Fleming began to talk. She was excited, and was calling for water. She said: “I am dying. Homer shot me in the Stomach and I am going to die.” The doctor said that she was suffering intensely at that time.

In qualifying the bill, the judge advents to the fact that the conversation took place before the'arrival of Dr. Stone and Mrs. Brown, .and that only Mrs. Anderson and Homer Fleming had testified to facts showing that the deceased was conscious of the approaching death. The court also said that Ollie Fleming may possibly have arrived; that he testified that he did not hear the deceased say that she was going to die. If we comprehend the record, the time that the declaration of the deceased was made was before the arrival of Ollie Fleming. Assuming that it was' not, however, the testimony of the appellant and Mrs. Anderson was to the effect that the deceased declared that she was going to die, taken in connection with her desperate condition, would at least prima facie establish a predicate which would require the receipt in evidence of the dying declaration of the deceased at that time. See Underhill on Crim. \Ev. § 179.

Mrs. Brown, who arrived soon after the tragedy, as did Dr. Stone, testified that the deceased made declarations showing that she was conscious of the impending death, and upon their testimony, at least in part, the dying declaration which we have quoted above was received in evidence against the appellant. Whether the testimony was admissible' as a dying declaration or not, it was admissible to contradict the state’s testimony embraced in the dying declaration which had previously been introduced. A dying declaration may be contradicted by the declarant’s statement or otherwise to the same effect as the testimony of a witness. Bishop’s New Crim. Proc., vol.’ 2, p. 1033, § 1209. A dying declaration is hearsay, but is received in evidence by reason of necessity in the case. The conditions under which it is made preclude cross-examination, and dispense with tlie necessity of an oath. The reasoning and authority upon which the practice is founded is stated by Judge Hurt of this court in Felder’s Case, 23 Tex. App. 490, 5 S. W. 149, 69 Am. St. Rep. 777, in which is also found a quotation from the language of Chief Justice Field, concluding with this statement:

“There would be no justice, therefore, in any rule which would deprive the accused of the right to impeach the credit of the deceased by •proof of his having made contradictory statements as to the homicide and its cause.”

The authorities supporting these announcements are numerous and harmonious. See Couch v. State, 93 Tex. Cr. R. 27, 245 S. W. 692, 25 A. L. R. 1359; Clark v. State, 56 Tex. Cr. R. 293, 120 S. W. 179; Davis v. State, 83 Tex. Cr. R. 539, 204 S. W. 652.

We will add, however, that we are inclined to the view that the testimony mentioned was also admissible under the rule of res gestae.

The use of the words “and he tried ■to force him to go” in the -written ■ dying declaration, we think, were not improperly received. Considered in the light of the context, we think they were classified as a shorthand rendition of the facts.

In bill of exception No. 2 complaint is made of the refusal of the court to receive in evidence the declaration of the appellant, made to his brother, 01 Fleming. From the bill as qualified it appears that, after his wife was shot, she was put on the bed by the appellant’s father and Mrs. Anderson, who were in the house at the time the shot was fired. Deceased said: “I am very sick; I am going to die; ’phone for the doctor.” Appellant asked her: “What doctor,” and she said: “Dr. Stone.” Appellant, after telephoning for the doctor, immediately telephoned for his brother, 01 Fleming. He was crying at the time, broken down, scared, grieved, and excited. He told 01 Fleming to come over at once, and he arrived in a very-short time, not over 15 minutes. Appellant in the meantime was building fires and heating towels for his wife. Observing his brother, the appellant walked out and met him. He said he did not know how long it took to get the doctor on the telephone, but supposed that it was not longer than 5 minutes. .Appellant testified that after telephoning for his brother he said nothing to. any one until the arrival of his brother; that he busied himself in the meantime trying to save his wife’s life.-

01 Fleming testified that upon receiving the message he was two and three-fourths miles distant from the home of the deceased; that he rode his horse from a gallop to as fast as the horse could go, reaching the home of the deceased in 10 or 15 minutes; that upon approaching the house he met the appellant who was crying and very much excited, who told him what had occurred. 01 Fleming would have testified that his brother said to him in substance that O. B. Fleming was coming after him with a knife and that Annie Fleming had an old auger; that he was trying to get his father to stop, and Annie Fleming was hitting at him, trying to hit the pistol or him, and knocked his hand down, and the pistol accidentally went off and shot her. This testimony was offered as res gestas, and excluded as not coming within that rule. In refusing to receive it, we believe the learned trial judge fell into error. Simpkins v. State, 94 Tex. Cr. R. 456, 251 S. W. 1084; Davis v. State, 96 Tex. Cr. R. 93, 255 S. W. 1112; Holman v. State, 92 Tex. Cr. R. 364, 243 S. W. 1093; Gillespie v. State, 80 Tex, Cr. R. 432, 190 S. W. 148; Craig v. State, 30 Tex. App. 621, 18 S. W. 297.

Paragraph 4 of the court’s charge reads thus:

“(1) The law also accords' to a person the right to act in his own necessary self-defense against any other unlawful and violent attack, though it may not appear to him at the. time, that he was in danger of losing his life, or of sustaining serious bodily injury; but in such cases, he must resort to 'all other reasonable and available means for the prevention of the threatened injwy, except to retreat, before he would be justified, wider the law, in hilling, or inflicting serious bodily injury upon, the party making such attach, and then only when such attaching party, or parties, is in the very aot of making such unlawful attach."

The propriety of embracing in the charge the language italicized is criticized by an exception duly reserved at the time and properly brought forward for review. In our opinion, the criticism is a just one. The assault against which the appellant was defending according to his testimony, was one in which his father, a violent and dangerous man, was attacking with an open knife and endeavoring to strike, appellant at the time retreating. We perceive nothing in the record which would make appropriate a charge to the effect that the appellant must resort to every other available and reasonable means for the prevention of the injury except to retreat. It presented to the jury a theory that does not arise from the evidence. Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 909; Petty v. State, 86 Tex. Cr. R. 324, 216 S. W. 867; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Schutz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880. The same vice is found in the fifth paragraph of the court’s charge.

The complaint of the manner in which the theory of accidental shooting was submitted not having been raised other thap by the motion for new trial, it is not properly before this court.

The record is silent as to whether the weapons used by his adversaries were of a deadly character; hence the failure to instruct on the presumption of intent to kill embraced in article 1106 of the Penal Code is not error.

Appellant requested an instruction upon his right to defend against more than one assailant. Upon another trial, upon like evidence, this issue should be submitted.

Because of the errors pointed out, the judgment is reversed and the cause remanded.

On Motion for Rehearing.

LATTIMORB, J.

We discussed the admissibility of the offered statement of deceased set out in bill of exceptions No. 5, wherein it is made to appear that after the shooting appellant said to deceased, “You know that it was an accident, and I didn’t intend to shoot you,” to which deceased replied, “I know it, and I forgive you, and waiit you to forgive me.” We did not discuss the matter with any view of definitely determining the admissibility of the statement of deceased as a dying declaration, or as res gestae; nor was our attention called to the form of the question or statement put to deceased by appellant as a predicate to what she replied, which might be invoked against its admissibility if her statement had been offered as a dying declaration or as res gestae. The pith of our opinion, and the gist of our discussion, intended to set forth that, the state having introduced the dying declaration of deceased as indicating an intentional killing on, the part of appellant, he had the right to prove other declarations of deceased showing that the shooting was accidental. In other words, a dying declaration may be attacked or impeached by showing other statements of the declarant of different import. Felder v. State, 23 Tex. App. 488, 5 S. W. 145, 59 Am. St. Rep. 777; Hamblin v. State, 34 Tex. Cr. R. 385, 30 S. W. 1075; Phillips v. State, 50 Tex. Cr. R. 129, 94 S. W. 1051; Herd v. State, 43 Tex. Cr. R. 575, 67 S. W. 495. If one whose dying declarations are admitted in evidence has at other times made statements contradictory to such testimony under the authorities cited and others, the contrary declarations are provable, and in such case similar supporting statements made by the deceased might be held admissible under all the rules.

The state also vigorously combats the correctness of our holding admissible as res gestae the statement made by appellant to his brother shortly after the shooting. The objection to said testimony made then, and, appearing in the qualification of the learned trial judge, and urged in argument before us, seems of more cogence as affecting the truth of whether such statement was made than as showing it not admissible. That appellant called a doctor before he called his brother, and said nothing to the- doctor about the manner or surroundings of the killing, would hardly seem to suffice as a reason for our holding the statement later made to his brother not res gestee. No explanation as to the why or wherefore of the shooting would seem necessary in calling a doctor, and, while that fact might be usable in argument as against the probability of the subsequent narration to the brother being made, it could have no weight with us, who are only called on to determine whether or not the offered statement made to the brother was admissible under the ordinary rules governing res gestse. We have carefully examined the facts as indicated in our original opinion, and are unable to say that the statement as offered was not res gestee. The rule has application both for -the state and the accused, and appears to be impo'ssible of exact definition, but must be invoked upon the facts of the particular case as it arises.

Not being able to agree with the state, we are of opinion the motion for rehearing should be overruled, and it is so ordered. 
      For otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     