65 S.W. 529 | Tex. Crim. App. | 1901
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for fifteen years; hence this appeal.
Appellant objected to the introduction by the State of the following testimony from the witness Isom Pittman, to wit: "That on the night of the homicide I heard John Brown (defendant) and Nim Brown have a conversation, in which conversation Nim Brown said to John Brown, `Let me have the gun; I will kill any son of a bitch that tries to run over my sister,' and John Brown refused to let him have the gun. John Brown said to Nim, `I will fix him.'" Appellant objected to this testimony on the ground that it was too general and indefinite; that it was irrelevant, and did not connect the threats with deceased, Houston Mayfield, in any manner whatever; that the witness did not know who they were talking about, etc. With reference to this bill of exceptions, we would observe it has been repeatedly held that a bill should state all the conditions surrounding the admitted testimony, so as to show that the court acted improperly in admitting it. McGlasson v. State, 38 Tex.Crim. Rep.; Cline v. State,
Appellant offered to prove by several witnesses that they saw John Brown (defendant) after he had gone about half a mile, to his home, after the killing of Houston Mayfield, and about a half hour after the killing; that they called him to the gate at his house, and asked him if he had done the shooting, and that he said he had done the shooting, and then inquired if he hit anyone. They told him he did and he replied if he hit anyone it was an accident, that he was shooting to scare them. This was the first thing he said when he came to the fence. There was not anything said after he got to the fence. He did not deny he fired the gun, but insisted if he hit anyone it was an accident and he was sorry for it. This was objected to by the State, and excluded by the court. Appellant claimed it was admissible, because it was a part of, the res gestae. The court excluded it on the ground that it was not a part of the res gestae, it being too remote. The same observations may be made with reference to this bill as were made in regard to the preceding; that is, the bill should show in itself all the circumstances that transpired from the time of the homicide until the declaration was made, so that it could be seen whether or not the court erred in excluding it. The only circumstances here stated are that the declaration was made after defendant had gone about half a mile from the scene of the homicide, to his home, and that it was about a half hour after the killing. It is not shown that he did not have his attention engaged with other matters in the meantime, or what he did. For aught that appears, he may have engaged in various conversations, not only about other matters, but in regard to the difficulty. If we recur to the statement of facts, it appears that appellant made substantially the same declaration at the scene of the homicide and immediately thereafter which is attributed to him at his house a half a mile distant and a half hour afterwards. And this declaration was properly admitted by the court as a part of the res gestae. In the shape in which this bill is presented, *296 it is not necessary to discuss whether or not appellant could introduce repeated declarations of his own to the same effect, made both at the time and afterwards, and claim they were res gestae.
Appellant strenuously insists there is a variance between the allegations in the indictment as to the means of killing and the proof, to wit, that the indictment alleged appellant committed the homicide by shooting deceased with a "Winchester rifle," whereas the proof shows it was done with a "Colt's rifle," and he asked a charge based on this alleged variance, which the court refused. This action of the court is assigned as error. A reference to the statement of facts shows that a number of the witnesses describe the gun as a Winchester rifle. A gun was produced and identified during the trial as the one with which the homicide was committed, and this was shown to be a No. 38 caliber Colt's rifle. Hamilton, a witness for defendant, testified that he was a gunsmith, and was an expert as to guns; that "a Colt's rifle is a different gun from a Winchester rifle; a Winchester works with a lever just under the lock; a Colt's works with a slide; the Colt's is a pretty hard shooting gun, and would ordinarily shoot through a man forty or fifty yards away; the Colt's people have a patent on their guns, and the Winchester people have a patent on their guns; they are of different makes; they shoot with about the same accuracy and about the same force; you can use the same cartridges in these guns; both the Winchester and the Colt's rifle have magazines just under the barrel, holding the same number of cartridges, and the only difference in them is the Colt throws the cartridges into the barrel by working a slide under the barrel and the Winchester by working a lever; a wound made with a Winchester rifle could not be told from a wound made with a Colt, if each were of the same caliber; each are about the same length, and weigh about the same; both are rifles; they shoot cartridges, and each are fired by powder and use leaden balls." Appellant cites us to a number of authorities in support of his contention that there was a variance between the allegation in the indictment descriptive of the gun used and that proven. The majority of these cases are thefts, and the subject matter of the theft was set forth in the indictment, and there was a variance between that and the proof. But the principle applied in those cases is of general application, where the averment is descriptive of the offense. In murder cases, however, great latitude is allowed in the description of the instrument with which the person was killed. For instance, the general doctrine laid down by all the elementary writers is, if the instrument alleged in the indictment and the one proven to have been used are of the same nature and produce wounds of a similar character, there is no variance, but where they are of an opposite nature and character the contrary. Thus evidence of a dagger will support the averment of a knife, but evidence of a knife will not support the evidence of a pistol. The averment that death was caused by shooting with a gun will be supported by evidence that death was caused by the infliction of a wound caused by the shooting of any firearm. Whart. Hom., sec. *297
810; Bish. New Crim. Proc., 488, subdiv. 2. In this State the indictment for murder must state the means used in committing it. State v. Williams,
We have carefully examined the record, and find no error therein. The judgment is accordingly affirmed.
Affirmed.
[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]