
    WILLIAMS v. STATE.
    (No. 6168.)
    (Court of Criminal Appeals of Texas.
    May 11, 1921.)
    1. Criminal law <§=>1166/2(12) — Remarks of judge to jury not reversible error in view of instructions, and where rights of accused: not prejudiced.
    Remarks of the judge to the jury before the trial of one accused of robbery that they should pay close attention to the testimony, and thereby avoid controversy among themselves and reach a verdict more speedily and satisfactorily, were not reversible error, where the court on objection instructed the jury not to consider his statement as evidence, or as tending to show guilt or innocence, and the remarks were not calculated to prejudice the rights of the accused.
    2. Criminal law <§=3406(5) — Oral statement of accused, leading to finding of pistol with which offense committed, admissible.
    Under Code Cr. Proc. 1911, art. 810, excluding oral statements made by the accused while under arrest unless they conduce to establish his guilt, such as finding the instrument with which the offense was committed, a statement so made by one accused of robbery, which led to the finding of the pistol claimed to have been used, was admissible.
    3. Criminal law <§=>409 — Accused may prove exculpatory statements made in connection with inculpatory statements proved by state.
    Under Code Cr. Proc. 1911, art. 811, declaring that when part of an act, declaration, or conversation is given in evidence by one party, the whole on the subject may be introduced by the other, and that an act or declaration necessary to make fully understood or to explain the same may be given by the opposing party, one accused of robbery could prove that, in connection with certain inculpatory statements proved by the state, he made other exculpatory statements.
    4. Criminal law <§=>! 120(3) — Exclusion of evidence not reviewable, where matter excluded is not shown by bill of exceptions.
    The weight of a ruling, denying defendant the right to prove exculpatory statements made by him in connection with inculpatory statements brought out by the state, cannot be appraised on appeal, when the bill of exceptions does not show what declarations were excluded.
    5. Criminal law <§=>404(4) — Exhibition to jury of articles found on scene of robbery not erroneous.
    In a prosecution for robbery, the exhibition to the jury of a" pocketbook belonging to the injured party and a pistol and certain playing cards found on the scene of the robbery was not erroneous; they being circumstances available to the state in connection with testimony showing their relation to the transactions.
    6. Criminal law <§=3409 — Accused may testify as to acts and declarations explanatory of admission, though not part of res gestse.
    Under Code Cr. Proe. 1911, art. 811, providing that when a detailed act, declaration, conversation, or writing is given in evidence any other act, declaration, or writing necessary to make it fully understood may be given in evidence, • one accused of robbery may testify, in explanation of his admission of having thrown away the pistol and playing cards found on the scene of the robbery, that he told the arresting officer immediately after he was arrested that lie won the money gambling, and, believing he was to be arrested for gambling, fled and threw away his pistol and the playing cards, and that he told the names of the others in the game and where they were, and requested the officer to go get them; the statute not being restricted to declarations that are part of the res gestae, but embracing explanatory acts and declarations by the accused after his arrest.
    7. Criminal law <§=>409 — Accused may introduce in evidence statement explanatory of statement used to incriminate him, though latter claimed exculpatory.
    ■ Where the state, in a prosecution for rob'bery, used defendant’s admission of having •thrown away the pistol found at the scene of •the robbery to incriminate him, defendant’s right to introduce evidence explanatory of the admission could not be nullified by the state’s claim that the part of the transaction and conversation introduced by it was exculpatory.
    8. Criminal law <®=>I09I (5) — Where excluded evidence relevant and material, bill of exceptions need not so state.
    Where it appeared from the bill of exceptions that excluded evidence proffered by defendant was both relevant and material, it was ■not necessary that the bill expressly so state; a reasonable and substantial compliance with ■the law concerning bills of exceptions being ■sufficient.
    Appeal from Criminal District Court, Tar-rant County; George E. I-Iosey, Judge.
    J. M. Williams was convicted of robbery, and be appeals.
    Reversed.
    Callaway & Shead, of Fort Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., and W. R. Parker, Asst. Cr. Dist. Atty., both of Fort Worth, and R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for robbery; ■punishment fixed at confinement in the penitentiary for seven'years.

Blackwell, the alleged injured party, gave direct testimony to the fact that the appellant and one Patterson committed the robbery, each presenting a pistol.

After the jury was impaneled, and before otherwise proceeding with the trial, the trial judge instructed the jury that they should pay close attention to the testimony, thereby avoid controversy among themselves touching the statements of the witnesses, and that by thus proceeding a verdict might be reached more speedily and more satisfactorily. Appellant made objection to this statement, whereupon the court instructed the jury that the statement should not be considered as evidence or tending in any manner to show the guilt or innocence of the accused. The practice of lecturing the jury is always fraught with the danger that either the language or the motive of the court may be misconstrued. It does not in all cases necessarily result in a reversal. Such result ensues when the remarks are calculated to prejudice the rights of the accused. Wilson v. State, 28 S. W. 200; Dow v. State, 31 Tex. Cr. R. 278, 20 S. W. 583. In the instant case, it is, in our judgment, not of this class. Hammett v. State, 84 Tex. Cr. R. 638, 209 S. W. 661, 4 A. L. R. 347.

Bill No. 5 refers to a statement made by the appellant, while under arrest, concerning a pistol which the state claimed was used in perpetrating the r'obbery. It is stated in the bill “that the information elicited from the appellant led to the finding of the pistol.” We fail to discern anything in the bill which would render this testimony inadmissible. It would seem to be within the purview of article 810, Code of Criminal Procedure, in which statements made by the accused while under arrest, which are not in writing, are excluded unless in connection therewith he made statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as finding the instrument with which the offense was committed. See Garcia v. State, 228 S. W. 938. The court withdrew the testimony complained of.

In bill No. 6 complaint is made of the refusal of the court to permit the appellant, upon cross-examination of the officer who arrested him and by whom the state proved certain inculpatory statements were made, to prove that in connection therewith the appellant made other statements of fact which he desired to introduce as exculpatory. As we understand the bill, this testimony was admissible under article 811, Code of Criminal Procedure, in which it is declared that when part of an act, declaration, or conversation -is given in evidence by one party, the whole on the subject may be introduced by the other, and where an act or declaration, which is necessary to make fully understood or to explain the same, may also be given by the opposing party. We do not think that the construction of the statute would be correct which would permit the state to prove that the appellant made declarations which led to the finding of the pistol with which the offense was committed, and exclude other declarations made in the same connection which would tend to be exculpatory. The bill, however, as prepared, does not enlighten us as to what declarations were excluded. We would therefore be unable to appraise the weight of the ruling complained of.

The exhibition to the jury of a pocketbook which belonged to the injured party, a pistol which was found upon the scene of the robbery, and certain playing cards that were also found there, was not erroneous, but in connection with the testimony showing their relation to the transactions they were circumstances available to the state on the issues involved.

Appellant’s theory, as developed from his testimony, was, in substance, that while in a game of cards with the Blackwell brothers, and while two other persons were present, the Blackwells were the losers; that, incensed at the loss, they threatened to cause the arrest of the appellant and his companion Patterson; that, believing he was to be arrested for gambling, he fled and threw away his pistol and the cards with which they had been playing. The fact that the pistol and the cards were found was proved by the state, as was also the declaration of the appellant to the officer who arrested him that he had thrown away his pistol. Appellant offered to testify to other declarations which he claimed to have made to the officer at the same time that he made the declarations about throwing away the pistol. Erom the bill we take the following quotation:

“ ‘Now, tell the jury what you said with reference to those two fellows that was there watching the game,’ said statement having been made immediately after the arrest of the defendants, and at the time the Officer Averitt inquired as to the statement with reference to the pistol, the objection of the assistant district attorney being that said statement would be a statement made after the commission of the offense, after the defendant was under arrest, and would be a self-serving declaration. Said witness would have stated, if permitted, that he told the officer immediately after he was arrested that at the time he was first put under arrest he did not get the money from the witness Blackwell, but that he won the same in a gambling game, and that there were two other persons present, and that they had run away, and that if the officer would pursue them and bring them back from the cut on the railroad where they were hiding they would straighten the whole matter up, and exonerate both of the defendants from the charge of robbery, and that he, the said Williams, told the officers where these parties were, and that he requested the officers to go get them.”

The court, in our judgment, was not warranted in excluding this testimony.

The statement of facts shows that the officer who arrested the appellant gave testimony to the fact that he chased him quite a distance before he succeeded in arresting Mm, that he searched him and found no pistol, but that appellant declared he had thrown his pistol away, and described the pistol. The state, by other testimony, showed that the pistol was found, also the cards.

We quote our statute:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.” O. C. P. art. 811.

The construction of this statute which would support the ruling of the court is, in our judgment, at variance with the interpretation of it heretofore made. In the Greene Case, 17 Tex. App. 405, the court, after quoting the statute, says:

“This article expands the common-law rule with reference to such evidence. At common law, when a confession or admission is introduced in evidence against a party, such party is entitled to prove the whole of what he said on the subject at the time of making such confession or admission. 1 Greenl. Ev. §§ 201-218; Whart. Or. Ev. § 688. But the above-quoted article does not restrict the explanatory act, declaration, conversation, or writing to the time when the act, declaration, conversation, or writing sought to be explained occurred, but extends the rule so as to render such acts or statements admissible, if necessary to a full understanding of, or to explain the acts or statements introduced in evidence by, the adverse party, although the same may have transpired at a different time, and at a time so remote even as to not be admissible as res geste.
“This article of the Code has not heretofore been considered and construed with direct reference to the question we are now discussing. In the case of Shrivers v. State, 7 Tex. Ct. App. 450, the question was presented and discussed, but without reference to this article of the Code. In that case the statements made by the defendant, explanatory of the statements proved against him by the state, were held admissible as.res geste, and the court said: ‘To render such after declarations or statements admissible as explanations, it must appear that they were made recently after the former, and it must also be obvious from the circumstances that they are not obnoxious to, but come within the exceptions to, the general rule that a party cannot make evidence for himself either by his acts or his declarations.’ The rule thus stated would be correct when applied to declarations of the defendant offered in his own behalf as original evidence, and not in explanation of statements or confessions proved against him by the prosecution. Davis v. State, 3 Tex. Ct. App. 91, and authorities there cited.
“But, in a case like this, where the statements offered are offered only in explanation of defendant’s statements introduced in evidence against him by the state, we can find no warrant in the statute for thus limiting their admissibility. In so far as the language used in the opinion in Shrivers’ Case conflicts with the construction we now give to the article quoted, the same is overruled. We are of the opinion that under this article the statement of the defendant made before the inquest, if it be necessary to make his confession fully understood, or to explain the same, was admissible.”

This interpretation of the statute has not been questioned so far as we are aware, but, on the contrary, has received frequent and express sanction. Pratt v. State, 53 Tex. Cr. R. 285, 109 S. W. 138; Smith v. State, 46 Tex. Cr. R. 283, 81 S. W. 936, 108 Am. St. Rep. 991; Harrison v. State, 20 Tex. App. 399, 54 Am. Rep. 529; Rainey v. State, 20 Tex. App. 470; Gaither v. State, 21 Tex. App. 540, 1 S. W. 456; Rogers v. State, 26 Tex. App. 431, 9 S. W. 762; Spearman v. State, 34 Tex. Cr. R. 281, 30 S. W. 229; Potts v. State, 56 Tex. Cr. R. 47, 118 S. W. 535.

The citation of the authorities illustrating the rule that the operation of the statute is not restricted to declarations that are part of the res gestse, and would not, in the instant case, be confined simply to declarations concerning the possession of the pistol, but would embrace explanatory acts and declarations such as the appellant sought to introduce, as disclosed by the bill of exceptions. He was by his acts, proved by the state, put upon explanation of the possession of his pistol, his flight, his throwing the pistol away, the presence of the cards, his association with the injured parties, and declarations made by him at the times set out in the bill of exceptions were such as he was entitled to have before the jury. Branch’s Ann. Tex. Penal Code, § 92.

The state assumes the position that the right of appellant under the statute to introduce other declarations explanatory of those proved by the state did not accrue, for the reason that those in evidence were exculpatory. With this view we are unable to concur either as to the facts or the law. The exculpatory 'character of the proof of flight and possession and disposal of the pistol is not apparent, but if this were questionable it was used to incriminate him, and his right to introduce legitimate evidence explanatory of it could not be nullified by the claim of the state that the part of the transaction and conversation introduced by it was exculpatory. Bailey v. State, 40 Tex. Cr. R. 150, 49 S. W. 102; Dover v. State, 81 Tex. Cr. R. 553, 197 S. W. 192, and authorities there cited.

The criticism of the bill of exceptions that the relevancy and the materiality of the proffered testimony is not thereby disclosed, we think, is not tenable. It is required that the relevancy and the materiality must appear, but it is not demanded that, in every instance, the bill must so state in terms. Stanton v. State, 42 Tex. Cr. R. 271, 59 S. W. Farrar v. State, 29 Tex. App. 253, 15 S. W. 719. From the bill before us, it is made plain that the officer who arrested appellant, testified for the state that appellant had made inculpatory declarations; and it also appears from the bill that appellant sought to make proof that the same declarations were accompanied by others made by the appellant at the' time, which were explanatory and tended to obviate the injurious effect of those proved by the state. Viewing the bill in the light of the parts of the record which this court is bound to examine, it becomes clear that the evidence excluded was both relevant and material. This, thus appearing to disregard the bill, would place an arbitrarily restrictive construction upon the law concerning bills of exceptions above a reasonable and substantial compliance therewith. Rules of procedure are made to facilitate, not to obstruct, the administration of justice, and it has been the practice of the courts of this state, in deciding questions as to the sufficiency of bills of exceptions, to bear in mind and apply this principle. Railway v. Pemberton, 106 Tex. 466, 161 S. W. 2, 168 S. W. 126; Farrar v. State, supra; Jenkins v. State, 34 Tex. Cr. R. 202, 29 S. W. 1078; Stanton v. State, supra; Robinson v. State, 70 Tex. Cr. R. 81, 156 S. W. 212; Plummer v. State, 86 Tex. Cr. R. 493, 218 S. W. 499. In rejecting the testimony referred to in the bill, the court, in our opinion, fell into substantial error, calculated to prejudice the appellant’s case. 271;

A reversal of the judgment is ordered. 
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
     
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     