*1 The argument county attorney. the unsworn statement of here, we are the facts Under obviously prejudicial. injurious Branch’s could not cure the that its withdrawal State, 187 Code, Derrick v. Annotated Penal S. W. 759.
Without
is
expressed
discussing
question,
of the
court
sustained the state’s demurrer to
improperly
motion for
trial
new
misconduct on the part
jury.
alleging
Heffnarn v.
Appellant’s granted, judgment aside, affirmance is set of the trial court reversed and the cause remanded.
Reversed and remanded. of the Commission of has been proved by Wright
M. A. April 2, Rehearing denied *2 Adams, Jr., Earle Smith, Houston, & all Berry, Berry for Houston, O’Brien Stevens of Crim. Dist. Atty., A. A. Daw- Canton, for State’s Attorney, son the State.
CHRISTIAN, offense is murder; the punishment for confinement five penitentiary years.
The homicide at a occurred place where appellant Donald cars. Swank had their parked Appellant and deceased exchanged some words. to the state’s angry According .testimony, appellant had a in his hand at the time. Deceased was pistol unarmed. During of words shot angry exchange deceased. tes- Appellant him fist, tified that deceased hit with his and that he shot deceased because he was believed deceased kill him. We deem it to set out unnecessary the evidence in further detail.
As disclosed No. appellant offered to witness, Mamie prove by that about minutes thirty after the homicide stated to the witness at her that home he was that he had to do the “sorry but that it killing, was dark and struck him deceased and he believed that deceased was kill fixing him at the time he shot deceased.” The state’s objection to the was testimony sustained. The court the bill qualified of exception follows: “The defendant had this witness earlier in that testimony, Swank, immediately deceased, is, had left the had place; been carried away and before defendant premises, left the returned, premises the defendant said T am certainly sorry but I happened, had it,’ to do and when the was asked question this witness as to what returned, defendant said when he and which was sustained court, and about which this taken, was there was nothing in the to show evidence defendant’s condition or mentally physically he, testified the defendant, witness had for a gone ride with Mrs. Wilshire thirty minutes—‘about half hour or some be not that like may be a little thing long may bit longer,’ that — — witness, as testified by" nothing shown in the evidence where he had just seen while away as to who had Wilshire; court was of the therefore the ride on this with it was not res gestae.” to manifest fails of are of that the bill We an automobile of the homicide left the Appellant place drove a drive. They for the of taking with Mrs. Wilshire purpose to the home returned before they minutes thirty for approximately deceased, alive, still who was In the meantime witness. that the state- There is to'show nothing moved to the hospital. It to show was incumbent upon appellant ment was spontaneous. such circumstances of time and but place not only proximity Butler vs. as disclosed the of the statement. spontaneity R. from Branch’s Annotated Penal Code Tex. Cr. 113. We quote *3 Texas, 84, as : follows of
“If the statement of defendant is disconnected from main the transaction, the statement relation of be how it appears occurred, a break in the continuity there or let-down being transaction the statements the essential characteristic lacking instinctiveness, is not as the of it admissible of res gestae. Time is not the sole test.” State, in cases cited the are Pharr the of text vs.
Among support State, 10 Tex. Cr. Brown 44 vs. Apps. the state on of objection,
Over cross-examination proper that he had to the home of frequently Sorrells and that at such time a visit was married daughter man. The court follows: qualifies (No. 2) witnesses, Mrs. Wilshire and Mrs. “Two defense had both testified, objection, without defendant had been of Mrs. house Sorrells and married of visiting daughter he at man and that the time was a married Mrs. Sorrells been to said house to see said married frequently going a year over a of months or eight woman defendant’s period defendant, a wife, testified the defendant was introduced married man time.” The same before the said during testimony being jury other without reversible error is from sources not pre- sented. are presented.
No other questions affirmed,
The
Affirmed. of of has the Commission approved
ON MOTION FOR REHEARING. LATTIMORE, bills of two of Each court, record are which pearing qualified by qualifica- tions were the accused without and each of accepted by complaint, which is us. without some upon Manifestly binding showing bill a made statement complaining by appellant half hour the fatal and after he had been rid- difficulty, out not be would such ing, necessarily under circumstances as to make it as res receivable trial court heard gestae. the testimony and him, had the witnesses before rejected testimony, saying as an that it was not res We see no explanation gestae. reason abuse his discretion. ruling any under thinking Certainly decisions of this court the many second bill of exception presents no error. The testimony objected to had been placed before the jury objection two other witnesses. Duncan v. Texas Crim. Rep.
The motion for will be overruled.
Overruled. Gray *4 Harve 26,
Rehearing April denied The opinion Hillsboro, for Moore
T.D.