82 S.W. 657 | Tex. Crim. App. | 1904
Appellant was convicted of a misdemeanor. During the progress of the trial appellant reserved the following bill of exceptions, which appears in the statement of facts, and is a part thereof. When the witness Mrs. Talbot Gill was on the stand, she was asked about a conversation which occurred between Mrs. Walter Martin, wife of appellant (and who was charged with having made the assault on her, which occurred on that morning and at the home of witness, about a mile from where said assault occurred), what Mrs. Martin *176 should have told her on said occasion, about appellant assaulting her. To which the witness replied, "She told me that Walter (meaning defendant) hit her with a piece of stove wood that morning. She took her dress off her shoulder and showed me the wound. The wound was about five inches long and two inches wide. It was right fresh. The skin was broken, and it was bleeding. Blood had run through her dress. She said that Walter wanted a clean shirt that morning; that she had washed the shirt the evening before, and it was not dry that morning, and he got mad and hit her with a piece of stove wood." This was objected to by defendant on the ground that it was hearsay. The State suggests, in reply to the appellant's contention, that this bill of exceptions was filed after term time, although within twenty days allowed for filing bills of exception authorized by the 28th Legislature; (see acts 28th Leg. p. 32) yet the same is a part of the statement of facts and not a separate bill of exceptions, and the statute contemplates a separate bill. We do not agree to this contention. Before the passage of the law above referred to, it was competent to take a bill of exceptions in connection with the statement of facts. It seems to us, that the same rule would apply, when the time for filing bills of exceptions was enlarged. The language of the statute is broad enough to apply to this view. It is also suggested that this evidence might be res gestæ, as the witness stated appellant's wife was excited and she was crying and the wound was fresh. The particular time when the alleged assault is said to have occurred is not shown in the bill of exceptions, but the bill of exceptions shows, that appellant's wife had evidently walked about a mile from appellant's home, where the testimony shows the offense occurred. We think enough is disclosed to indicate, that it was too remote to constitute the testimony a part of the res gestæ. Besides, it appears to have been introduced as original testimony, without regard to its being a part of the res gestæ. We do not think that the evidence was admissible. This is the only testimony in the case that inculpates appellant in the alleged assault on his wife. They both denied that any assault was committed. Because there is no legal testimony supporting the verdict, the judgment is reversed and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, absent.