
    TUCKER v. STATE.
    (No. 8305.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.)
    1. Criminal law &wkey;>368( I) — Statements of one hearing shots as* to being held up five minutes before held not admissible as res gestae.
    In murder prosecution, testimony as to statement of one, with whom witness was talking when they heard shooting and “hollering,” as to having been held up with gun about five minutes before in direction from which noises were heard held not admissible as res gestae.
    2. Criminal law &wkey;>l 169(1) — Admission of testimony as to another’s statement that he was held up shortly before shooting held reversible error.
    In murder prosecution, testimony as to statement of one, with whom witness was talking when they heard shooting and “hollering,” .as to having been held up with gun about five minutes before in direction from which noises were heard, held reversible error as tending to strengthen probability tha,t jury would believe testimony of person making statement as to defendant’s having held him up and having explained that he intended to scare another man, which was contrary to defendant’s testimony as to self-defense.
    3. Witnesses &wkey;j'379(2)— Question as to contradictory statement by witness as to cause of killing held properly permitted.
    In murder prosecution, wherein defendant’s wife testified as to deceased’s improper conduct toward her, question to her as to whether she had not stated that defendant killed deceased for nothing, and because latter would not put up on him to, make crop, was .properly permitted for impeachment purposes.
    4. Criminal law &wkey;l 134(3) — Bill as tp improper argument, not likely to occur on retrial, not discussed.
    Bill as to improper argument, not likely to occur on retrial, will not be discussed.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Bill Tucker was convicted of murder, and appeals.
    Reversed and remanded.
    Johnson & Waters, of New Boston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State. •
   LATTIMORE, J.

Appellant was convicted in the district court of Bowie county of murder, and his punishment fixed at 12 years in the penitentiary.

That appellant shot and killed deceased is not disputed. The men were neighbors. The testimony as to what led up to and caused the killing is conflicting. In view of our disposition of the case we do not deem it necessary to set out the facts at length. The state contended that appellant took a shotgun and placed himself behind a tree near a road, and that when deceased came along appellant shot him á number of times, and that the killing was upon malice and premeditation. After the killing appellant went up the road to where Messrs. Powell- and Williams were and told them- there was a dead man down there. Appellant’s theory of the case was self-defense, and he asserted that deceased had taken away from him the affections of his wife and had threatened to kill him, and that on the occasion in question he met deceased in the road and the latter began to dismount from his horáe, accompanying this movement with a threat to then kill appellant.

Mr. Williams testified that on the morning of the homicide he was going up the road past the place where the homicide occurred later, looking for some horses, and that at the place of said o'ccurrence appellant stepped out from behind a tree and presented a gun cocked at him, but, upon discovering that it was not the man he was after, appellant told him that he had intended to scare another man, and for him to go on up the road. Williams went on up the road about 250 yards to a point where he met Mr. Powell. "He accosted Powell and asked him in reference to the lost horses, and about the time the conversation began a shot was heárd from down about where Williams met appellant, and the voice of a man “hollering” was heard-. Both Williams and Powell testified that the shooting continued until a number of shots were fired, and that the parties appeared to be getting farther away from them while the shooting was in progress, and both agree that appellant came up to them presently and reported the fact that he had hilled a man.

Mr. Powell was permitted to testify over objection that, when he and Williams heard the shooting and the hollering, Williams said he wondered what was the matter, and that he stated to Williams it sound-to him like somebody was shot, and that Williams then said: <

“A ma,n come out from behind a tree with a gun and held me up when I was coming along the road and asked me where I was going, and I said I was going to hunt some horses, and he said, T stopped here to scare a man, but got the wrong man,’ and Williams began to shake, and shook until .1 asked him to get down, off of his horse and go in the house and let me make him a fire.”

This was about five minutes after Williams arrived at the place where witness was. The learned trial judge qualifies the bill of exceptions presenting complaint of this matter by the -statement that he admitted it as res gestse. We regret that we cannot agree with him upon the admissibility of the testimony. Neither Powell nor Williams were participants in the tragedy. They were some distance away. The effect of the introduction, through the mouth of Powell, of the statement made by Williams to ‘Powell, would legitimately be to strengthen the probability that the jury would believe Williams’ testimony as to what occurred when he says appellant stepped out from behind the tree and threw the gun down on him, appareptly thinking him to be deceased. This was a most material issue, and, if the testimony of Williams as given was true, clearly the case would be an assassination if appellant was waylaying deceased. This was pointedly denied by appellant while a witness on the stand; he testifying that he was going down the road carrying his gun and met a man who inquired about some horses, but that he made no statement to said man in regard to what he was doing or where he was going, and did not say to him that he was waiting to scare a man. In addition to denying the testimony of Williams as to what then occurred, appellant further said that he was going on down the road when he met deceased, and the latter got off his horse to attack him, as above referred to.

We know of no decisions applying the" doctrine of res gestse to the exclamations or statements of bystanders or third parties which go to such an extent as to include statements made under the circumstances and of the import as embraced in the testimony of Mr. Powell. A somewhat similar proposition was involved in Felder v. State, 23 Tex. App. 477, 5 S. W. 145, 59 Am. St. Rep. 777; Ex parte Kennedy (Tex. Cr. R.) 57 S. W. 648; Wills v. State (Tex. Cr. App.) 22 S. W. 969; Baker v. State, 45 Tex. Cr. R. 396, 77 S. W. 618—under Hill’s Crim. Ev. § 168. Believing the learned trial judge fell into error in admitting this testimony, and that its effect was necessarily most harmful to the accused, we are constrained to direct a reversal for this error.

We are of opinion that the court committed no error in allowing the predicate, to be laid for the impeachment of the wife of appellant by asking her if she did not make, certain statements at the home of Mrs. Haggard in the presence of Mrs. Pitts, Mrs. Lock, and Mrs. Goodman, to the effect that appellant killed the deceased for nothing, and because he would not put up on him to make a crop. She was introduced as a witness in her husband's behalf, and gave testimony very damaging to the state in regard to improper conduct on the part of deceased toward her. Her impeachment by proof of contradictory statements made by her relative to the cause of the killing as known to her, after laying said predicate," was proper.

We will not discuss the bill of excep-, tions complaining of the argument, because same will not likely occur upon another trial.

For the error above mentioned, the judgment will be reversed, and the cause remanded. ■ 
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