62 S.W. 575 | Tex. Crim. App. | 1901
Appellant was convicted of murder in the second degree, and his punishment assessed at ten years confinement in the penitentiary.
Appellant's first bill of exceptions complains of the action of the court refusing to allow him to prove, by certain witnesses, that appellant told them on the next day after the killing of deceased, Wyatt, while they were examining the gun with which the shooting was done, that he killed deceased with the first shot he fired. Appellant claims that this testimony was admissible to support and corroborate defendant, inasmuch as it had been shown by the State, that on the same day of the homicide and immediately thereafter, he told certain parties that he killed deceased with the second shot. The testimony introduced by the State was admissible as original testimony against defendant, and not as impeaching evidence; and the conversations proposed to be brought out by the defendant were no part of the conversations adduced by the State.
Appellant also proposed to prove by certain witnesses that Henry Rich told him that the first shot killed deceased, Wyatt, and the second shot missed him going through the door. Defendant offered this testimony for the purpose of corroborating Henry Rich, who had been attacked by the State by testimony showing he had told them on the day of the homicide, and immediately thereafter, that appellant killed Wyatt with the second shot. The court explains this bill by showing, after the witness Rich testified that the first shot killed deceased, the State placed witnesses on the stand, and showed that on the same day, directly after the killing, said Rich stated to said witnesses, or in their presence, that the first shot missed deceased, and appellant killed him with the second shot, and that the evidence sought to be adduced was subsequent to this transaction, being made on the next day. The authorities on this subject authorize a witness who has been impeached by showing that he has made statements contradictory to his testimony given on the stand to be supported by proof that he made the same statement soon after the transaction, or, if it is shown that the testimony of the witnesses was recently fabricated, or that he was induced to so testify from some motive or improper influence, then he could be supported by proof that he made the same statement before the influence was brought to bear. See Dicker v. State (Texas Crim. App.), 32 S.W. Rep., 541; Campbell v. State,
Reversed and remanded.
[NOTE. — The State's motion for rehearing filed by N.B. Morris and Rob't A. John, Assistant Attorney-General, was overruled without a written opinion. — Reporter.]