fore discussed, if standing alone, would ne- | charging the jury to disregard the testimony cessitate a reversal of the judgment in this case and a remand for another trial.

[7] Counsel for plaintiff in error allege error upon the part of the trial court in charging the jury, after the case had been argued before them by the attorneys, as fol lows:

"Upon the trial of this cause during the examination of the witness T. C. Mitchell the following question was asked by attorney for plaintiff and answered by the witness, to wit: 'Q. (by Mr. Barrett). Was anybody also killed on the train besides her being hurt? A. (by witness). The fireman on the front end.' And during the examination of the witness H. J. Gentry he testified in part as follows: 'It killed one fireman. *Well, it killed one fireman, and broke one engineer's leg.' You are instructed that such evidence is highly improper, and that it is withdrawn from you, and you must not consider same for any purpose, but must disregard it altogether."

*

In passing upon this assignment, the Court of Civil Appeals says:

in question. But we cannot agree with the Court of Civil Appeals in its conclusion that the giving of this charge was harmless error. [8] This case was submitted to the jury upon a general charge. A general verdict for the railway company was returned. This verdict could have been based upon any one or more of three or four distinct theories. When that is true, it is impossible for the Court of Civil Appeals to know, or for the defendant in error to show, upon what theory the verdict was returned and by what evidence its verdict was influenced. Therefore, if this evidence was material to any of the decisive issues before the jury, the error was harmful, and the case must be remanded for another trial. See Tisdale v. Railway Co. (Tex. Com. App.) 228 S. W. 137, 16 A. L. R. 1264, and authorities there cited.

The Court of Civil Appeals states that this evidence was admissible as tending to show that Mrs. Lamar's injuries were not due to her carelessness or contributory negligence. This is true. But the railway company not only pleaded her negligence in handling herself in the coach, but among its pleadings we also find the following:

gers, saving only that the plaintiff's wife herself claimed to have been caused to fall out of her seat."

"The seventh assignment assails the action of the court in charging the jury to disregard the testimony of the witnesses Gentry and Mitchell, which was to the effect that a fireman was killed, and that one of the engineers "That the concussion or movement of said had a leg broken. The testimony, as shown train produced by said engines so coming toby the bill of exception, is that in the collision gether had little or no effect upon the passenthe fireman was killed and one of the engineers gers in said train, and produced no inconvenhad a leg broken. The testimony was admis-ience or discomfort to any of such passensible. It was part of the occurrence, and had a tendency to show the force of the impact of the two engines, and would tend to show that Mrs. Lamar was not thrown from her seat in the car by carelessly occupying it, as charged A further reading of the pleadings and the in the answer. The court was in error in statement of facts shows that the railway charging the jury to disregard the evidence, and that it was highly improper as such. Rail- Company was seriously contending that this was a very slight wreck, and that any inway Company v. Wright, 19 Tex. Civ. App. 47, 47 S. W. 56 (4); Railway Company v. jury to Mrs. Lamar must have been exceedLehenberg, 75 Tex. 61, 12 S. W. 838. How-ingly slight. Not only so, but the larger part ever, in holding the testimony admissible, of the statement of facts is taken up by witwe think no material injury is shown by its exclusion. The undisputed facts show there was a head-on collision, in which the lighter engine was knocked down the track 300 yards, and another engine demolished. passenger train was being pulled by a double header. The mail coach was partially turned over on its side, but the coach in which Mrs. Lamar was riding did not leave the track, and no other coach in the train was turned over or left the track. These facts it seems to us sufficiently establish the force which appellant sought to show as causing Mrs. Lamar to be thrown from her seat in the car and to negative contributory negligence. If the killing of the fireman or crippling of the engineer had been shown, it would have added but little, if any, force to appellant's theory. The exclusion of this testimony was not reasonably calculated to have induced a different verdict."

The

The evidence of Gentry and Mitchell was clearly admissible, as the Court of Civil Appeals held. Therefore we agree with that court in holding that the trial court erred in

nesses who testified for the railway company that her condition at the time of the trial was due to things which happened to her early in life. In other words, the statement of facts shows a strenuous contention

that this was, in a sense, a fake suit and an effort to recover a large sum of money for injuries which were not only slight, but which were due to circumstances happening long before the wreck. We conclude that the testimony of Gentry and Mitchell was not only relevant on the alleged contributory negligence of Mrs. Lamar, but as a circumstance tending to attest the good faith of her claim and the extent of her injuries. If one other person on the same train was killed, and still another had a leg broken, the jury might very reasonably have more readily concluded that Mrs. Lamar was not only injured without negligence on her part, but that she was seriously injured. It may be that upon these closely contested issues the testimony of these two witnesses would

(248 S.W.)

have turned the scale in Mrs. Lamar's "Unless it can be said that in all probability favor, and this is all the more possible, since the error was primarily harmless, or rendered these very witnesses were attending the trial so by the withdrawal of the comment, a reat the request of the railway company, and versal of the judgment will follow." were in its employ at the time of the accident in question. It is also true that no other witness gave this testimony. It was not cumulative of other evidence in the case. As said by the Court of Civil Appeals, the light engine of the freight train was knocked 300 yards down the track and another engine demolished, but there is no other evidence that the passenger train was so wrecked as to cause an injury to any other person thereon than Mrs. Lamar.

The Court of Civil Appeals practically admits that the evidence in question might have added a "little force" to plaintiff in error's theory. If so, as we have said before, it might have been sufficient to have turned the scale in her favor and caused the jury to render her a verdict.

[9, 10] The Court of Civil Appeals says this testimony, erroneously excluded by the court, "was not reasonably calculated to have induced a different verdict." We cannot agree with this conclusion, for we do not think any one can tell what might have influenced the jury. The record presents no word from them on this point. It is as silent as the grave. Consequently, we are relegated solely to the field of pure conjecture in trying to determine what may have influenced these jurors in their deliberations. We think the courts of this country should proceed slowly, to say the least of it, in following a request to guess off the rights of men. Where an erroneous charge is submitted, it must rather clearly appear from the record that no prejudice resulted to the one erred against. In this case we do know one thing, and one only, and that is that the jury found against Mrs. Lamar. The loss of any evidence which might have helped her very likely injured her. At any rate, she seemed to have needed more evidence than she had before the jury. At best, it seems to us that one must be doubtful as to whether or not the error was harmful. In that event, the

doubt should be resolved in favor of the one

against whom the error was committed. See Hines v. Parry (Tex. Com. App.) 238 S. W. 886; Payne, Agt., v. Harris (Tex. Com. App.) 241 S. W. 1008. In the former case, Judge Randolph, of the Commission of Appeals, says:

"Feeling that the communication made was such as leaves it doubtful as to whether or not the verdict of the jury, in part at least, was not influenced against the defendant, we recommend that the judgments of the trial court and Court of Civil Appeals be reversed, and

remanded for a new trial."

We think this is correct, and that every reasonable doubt should be resolved in favor of the one erred against. We do not think it can be said that "in all probability" the | verdict in the case at bar was not influenced by the withdrawal of this testimony. Therefore we think the giving of this charge withdrawing this evidence was not only error, but error for which the case should be reversed.

[11] We will say further, in passing, that this charge is probably highly prejudicial to the whole case of plaintiff in error. Coming after the close of the argument to the jury, and couched in the very language employed, the jury may have concluded that the trial judge had no faith in these witnesses. The court told the jury that this portion of the testimony of the witnesses was "highly improper," and that they "must disregard it altogether." In the absence of any explanation as to why it was so "highly improper," the jury might have imagined the court had a number of reasons for so charging them. Since it is admitted that the charge was erroneous in withdrawing the evidence, we are all the more impressed with the theory that it was likely prejudicial in many ways, and possibly cast a damper over the plaintiff in error's case. It is incumbent upon trial judges to exercise the greatest care in preventing the jury from ascertaining the views of the court upon the credibility of the witnesses or the weight he gives to their testimony.

We have most carefully considered the errors heretofore discussed, and we entertain the gravest doubt as to whether or not plaintiff in error has had in the trial court a fair, lawful, and impartial trial. It is practically admitted that all the errors heretofore discussed were committed, and we are asked to hold that they were all harmless. We are not unmindful of the desire on the part of almost every one to end litigation, but we feel that in this case the record does not show that Lamar has not been prejudiced by reason of the errors committed. For that reason, we think it is much the safer plan to give him another trial.

The other assignments of error in the application have been correctly decided by the Court of Civil Appeals, in our judgment.

Because of the errors heretofore pointed out by us, we recommend that the judgments of the district court and Court of Civil Appeals be reversed, and the cause remanded

to the former for another trial not inconsistent herewith.

In the case of Express Co. v. Chandler, 231 S. W. 1085, the Commission of Appeals, CURETON, C. J. The judgment recomin an opinion by Judge Spencer, says that-mended in the report of the Commission of

Appeals is adopted, and will be entered as, household effects, went by railway 'to Rotan, the judgment of the Supreme Court.

while Forrester and Mrs. Posey went through the country in an automobile. They reached Rotan in advance of Posey, and spent the night at a hotel, occupying the same room, though not the same bed. This occurred on Easter Sunday preceding the homicide in June. Posey had located on a section of land near Rotan, and all resided there in the same house until the day of the homicide, June 17, 1921. There was a contract of sale of a half interest in the land from Posey to Forrester. In the contract there was incorporated a reservation to the effect that, before appellant was permitted under the contract to sell his interest, Posey was to be accorded the opportunity to buy it, and Posey in turn obligated himself to buy it in the event appellant became dissatisfied and wanted to sell.

On the day of the homicide, Mrs. Posey and her husband were starting to the railroad station in order that she might visit her father. The appellant had spent the previous night at Rotan, leaving there early in the morning, and went to his home, arriving there soon after deceased and his wife had started on their trip to the railroad station. The parties met near the gate of the Herrod home. They stopped, apparently conversing for a time, and returned to the house, and soon after both Posey and his wife were killed. Some conversations between the deceasand appellant were proved, suggesting that they were about to dissolve their relations in accord with the contract mentioned. The deceased and his wife, while on their way to the railroad station, passed the home of the witness Herrod, and were met by the appellant at the gate; he riding horseback.

250-Evidence held to sustained conviction for murder. Evidence held to sustain conviction for mur

der.

4. Homicide 196-Evidence of death of one who accused claimed to be defending held admissible on issue of self-defense.

In a prosecution for murder, where the defense was that the killing was in defense of another, testimony of the wounding and death of one whom accused claimed to have been defending held clearly relevant.

The homicide took place in the house. Posey was shot in the breast one time. His wife was killed by blows from some blunt instrument. The evidence points to an iron bar, found near the bodies with blood stains on it,

Appeal from District Court, Fisher Coun- as the weapon used in killing Mrs. Posey. ty; W. R. Chapman, Judge.

J. W. Forrester was convicted of murder, and he appeals. Reversed and remanded. L. B. Allen, of Roby, and Stinson, Coombes & Brooks, of Abilene, for appellant.

There was some blood sprinkled on the face of Posey. A wash pan with a bloody rag in it was found pushed under the kitchen cabinet. There was blood upon the dress of Mrs. Posey and down as far as her lap. There were several wounds upon her, either of

Beall & Beall, of Sweetwater, and R. G. which, according to the medical men, would Storey, Asst. Atty. Gen., for the State.

MORROW, P. J. Appellant is under conviction for the murder of B. F. Posey; punishment assessed at confinement in the penitentiary for a period of 25 years.

probably have rendered her unconscious.

After the homicide, appellant went to the home of the Herrod family, about a quarter of a mile distant, and had a conversation with Mrs. Herrod. Out of Mrs. Herrod's testimony there arose one of the legal questions presented on this appeal. Mrs. Herrod saw the parties meet at her gate, and, ap

Posey and his wife were young people. They resided at Barstow, in Ward county, Tex. Forrester and Posey were old friends,parently after having had the conversation. and Forrester was unmarried, and made the Posey house his home. They decided to move to Fisher county. Posey, with his

saw them go to their home: She hollered at them as they passed, and Mrs. Posey replied with a smile, though the witness did

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.)

not understand what she said. About an me! And he said he went to the kitchen door hour and a half later, the appellant came to and couldn't open that as readily as he wanted the home of Mrs. Herrod and had a conversa- to, and the north door in the west room was tion with her. She was interrogated about open, and he went in that door, and when he this conversation in her direct examination got to where he could see, Frank hit Maggie one lick, and as he hit her he said, 'Damn you; by the state to the following extent: I'll kill you;' and then he turned on him and says, 'Damn you; I'll kill you too;' and then after that he said he run in and caught hold of Mr. Posey, and Mr. Posey slung him off back in the northwest corner of the kitchen, and he says, "Then I shot him.' As to whether he said. that Mr. Posey drew the iron bar on him, he said, 'He turned on me.' I believe he did say something about having an iron bar in his hand at that time; I believe he said, 'He turned on me with the iron bar.'"

He told me at that time that he killed him; he says, 'Frank tried to kill Maggie, and I killed Frank.' He didn't tell me how he killed him; he didn't tell me then that he shot him. Before he told me he killed Mr. Posey, I pressed him to know what was the matter. He kept wanting to know where Mr. Herrod was, and I had to go out and show him the direction in which to go; I told him where Mr. Herrod was."

Mrs. Herrod went to the scene of the homicide, and found Mr. Posey dead and Mrs. Posey still alive, and further testified on behalf of the state as follows:

"As quick as I could tell Mr. Forrester we had to have a doctor, he turned and started to his horse to go to phone for one. That left me and Mr. Herrod there. I couldn't tell you how long we two were there together before any one came any more than as quick as Mr. Forrester could ride to the phone and back. I didn't see Mr. Forrester go all of the way. I saw him go, and when I saw him come back he was riding as hard as he could ride. Mr. Forrester got back about the time Mr. Gregory and the other men come. I don't know which one got there first, but it was about the same time."

From the same witness on cross-examination, the appellant elicited the following testimony:

*

The court instructed the jury on the law of murder, manslaughter, and self-defense and These issues were in defense of another. submitted in a manner of which the appellant finds no fault, and we will add that the charge submitting these issues is open to no just criticism perceived by us.

[1, 2] The only serious attack upon the charge is that in which appellant complains of the omission to embrace in the charge an instruction to the jury to the effect that the state, having introduced the statement made by the appellant to the witness Mrs. Herrod, the truth of any exculpatory or mitigating facts embraced in the declaration so introduced would be presumed, unless their falsity was shown by the evidence in the case. No special charge was asked, but by exception to the charge the legal question as we have undertaken to state it above is presented for review.

The rule for which appellant contends is stated in Pharr's Case, 7 Tex. App. 478,. in the following language:

"When the admissions or confessions of a party are introduced in evidence by the state, then the whole of the admissions or confessions are to be taken together, and the state is bound by them unless they are shown to be untrue by the evidence; such admissions or confessions are to be taken into consideration by the jury as evidence, in connection with all the other facts and circumstances of the case."

"I said that in about an hour and a half Mr. Forrester came back to my house. He was on the horse. When he called me, and I run to the door, his horse was reared up on his hind feet, standing almost perfectly straight on his hind feet. He seemed to me to be very much excited at that time. He asked me where Mr. Herrod was. He had not got off of the horse then. * * He was so excited he couldn't open the gate, and he came through then, and still couldn't think where Mr. Herrod was, and I went around the house and pointed the maize out to him, showed him the maize, and told him my husband was there. I asked This rule has been emphasized and reafhim what was the matter. He was crying, and firmed in many subsequent cases. See Pratt I knew there was something the matter. ** v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; And I says, 'Mr. Forrester, tell me what is the Combs v. State, 52 Tex. Cr. R. 616, 108 S. W. matter,' and he says, 'Something bad happened 649; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. at Frank's;' and I says, 'Anything the matter with Maggie?' and he says, 'Yes; Frank tried W. 138; Banks v. State, 56 Tex. Cr. R. 262, to kill Maggie, and I killed Frank;' and he got 119 S. W. 847. It is not applicable, however, on his horse and went to the field; he went in all cases. This has been often declared. just as hard as the horse could run, right Jones v. State, 29 Tex. App. 21, 13 S. W. 990, across the field. I asked him, I says, 'Is Mag- 25 Am. St. Rep. 715; Slade v. State, 29 Tex. gie alive?' and he says, 'She was when I left.' App. 392, 16 S. W. 253; Casey v. State, 54 He went away to the field, he went just as hard Tex. Cr. R. 587, 113 S. W. 534; Pickens v. as he could ride to where I told him I saw State, 86 Tex. Cr. R. 660, 218 S. W. 755. The my husband last. I don't remember anything he said when he came back to the question, therefore, is, are the facts of this house with reference to how the killing occase such as to demand an instruction to the curred, except he said he shot Frank. He told jury informing them of the existence of the me Mrs. Posey called him, said, 'Lord a mercy! rule stated and directing that it be given apdon't kill me! Oh, Mr. Forrester, run and help i plication in their deliberation?

*

66

In Pharr's Case, supra, the state introduced a witness, who in his testimony said: Defendant admitted to me that he had killed deceased, but said he had killed him in self-defense, though defendant had previously denied that he had done the killing. He stated that he and deceased had traveled together from Kansas, and had been playing cards, and that he [defendant] had won the pony of deceased at cards, and that on the morning of the killing they were riding along, and got into a conversation about the pony defendant had won, when the deceased told the defendant that he had to give him back his horse. Defendant replied that he would not do it, when deceased said, 'Well, I will kill you then,' and immediately reached his hand into his saddlebags to get his pistol, and, believing that deceased was going to kill him," and that his life was in danger, defendant shot him.

In the instant case, the state's counsel combats the view that there was error in declining to give the charge on the proposition that the declaration was not relied on by the state to connect appellant with the homicide, but that the state's reliance was upon circumstances. We think this position untenable. State's counsel might have refrained from introducing the exculpatory declaration, but, having done so, the law operates upon it. Giles v. State, 43 Tex. Cr. R. 561, 67 S. W. 411.

Aside from the declaration of the appellant, which was introduced in evidence, that part of the corpus delicti which goes to show that the deceased, Posey, came to his death by violence-that is, by a pistol shot-is shown by the condition of his body and the wound upon it. To connect the appellant Circumstances were introduced, showing with it, the state introduced the testimony of that the appellant and deceased were in com- Mrs. Herrod, and thus by the confession of pany; that the deceased had a pistol and the appellant completed the proof of the corsome other property, including a little money; pus delicti by showing his connection with that they were seen, a short time before the the homicide. The evidence which the state homicide, apparently acting as though on elicited from Mrs. Herrod was the declarafriendly terms. A report of a pistol was tion by the appellant in her presence that heard, and a man was seen to run out of the Posey "tried to kill Maggie"-that is, his bushes and pick up something. Afterwards wife-and that he (appellant) killed Posey. the body of the deceased was found near this The purpose and effect of this testimony was point. One of his pockets was turned inside to identify the appellant as the slayer of out. He had been shot in the head. The Posey. The state having introduced it, and, court, in discussing the propriety of instruct-in connection with it, the statement that the ing the jury, used this language: deceased was about to kill his wife, it cannot

cross-examination of the witness who testified to it, and which, coming as it did, was legitimate testimony to go to the jury, to the effect that when the deceased said he would kill the defendant he was attempting to get his pistol, when the defendant raised his gun and fired. Now, all this may have appeared to the court to be a mere pretense and fabrication; but, if so, the court should not have conveyed to the jury, by any word in the charge, or in any other manner, what his impressions really were as to any part of the testimony." Pharr v. State, 7 Tex. App. 478.

"It must be borne in mind that the whole de-ignore this latter exculpatory or mitigating fense of the defendant rested on the fact that fact. It can be disposed of only by proof of he had said he had killed the deceased, but did its falsity. It is not to be understood that it in self-defense, coupled with that other por- the state, to prove its falsity, would have to tion of the same statement drawn out on the introduce direct and affirmative evidence. It would be enough that its falsity appear to the satisfaction of the jury, beyond a reasonable doubt, from any or all of the facts before the jury. The exculpatory inference drawn from the declaration, namely, that the appellant shot Posey to prevent his killing his wife, was submitted to the jury as a defensive matter. It arose alone from the declaration of the witness Mrs. Herrod. In passing upon its truth, the precedents to which we have adverted, we think, under the In Pratt's Case, supra, the state introduc- facts of the instant case, made it imperative ed the declaration of the appellant that he that the court, upon proper exception to its had killed the deceased, and in connection charge, should so amend it as to inform the with it he also stated that he did so in self-jury that the exculpatory declaration of the defense, and the state, at least in part rely-appellant would be taken as true, unless its ing upon this testimony to connect the appel-truth was refuted by the facts in evidence. lant with the homicide, justice required an instruction as that under discussion in the instant case. So in Combs' Case, 52 Tex. Cr. R. 616, 108 S. W. 649, the rule was applied in a well-considered opinion written by Judge Ramsey of this court, a case in which the state introduced the declaration of the appellant that he had killed the deceased, in connection with which he claimed that the fatal shot was fired by accident.

[3] The contention of the appellant that the evidence in the case is not sufficient to support the conviction for murder we think is without merit.

[4] A request was made for an instruction eliminating from the consideration of the jury against the appellant of the wounding and death of Mrs. Posey. It is clear that the consideration of her death and the wounds upon her were relevant upon the issue of