Shrivers v. State

White, P. J. The evidence of the witness Chandler, as to what his deputy Holcomb, in presence of defendant,-said the prisoner-told him when the pistol was delivered up, was in the nature of hearsay evidence, and was not admissible if it had been objected to by the defendant. Because when the statements were made by Holcomb, the defendant, though present, was under arrest, and his condition as a prisoner protected him from such declarations or admissions, even if they had been made by himself; and when made by Holcomb in his presence, he was not bound to deny them in order to avail himself of this legal protection, and avoid the force of the statements as quasi-confessions. His presence did not affect the status of the evidence. It must be treated as though he was not present at the time, and therefore as hearsay. Having been admitted, however, at the iústance of the State as a criminative circumstance, without objection from defendant, the defendant was entitled to show any fact, circumstance, or declaration made by him at the time, or immediately afterwards-, tending to explain, impair, or destroy the force of this evidence for the State. Davis v. [455] The State, 3 Texas Ct. App. 91 ; Chaney v. The State, 31 Ala. 342. To render such after-declarations or statements admissible as explanations, it must appear that they were made recently after the former; and it must also be obvious from the circumstances that-they are not obnoxious to, but come within the exceptions to, the general rule that a party cam not make evidence for himself, either by his acts or his declarations. We think the matter in this instance did come within the exception, because the explanation was made within a short time, to wit, within an hour, and was both reasonable, probable, and entirely consistent with the former statement. The court, therefore, after admitting this evidence, erred in ruling that the testimony of Rial Smith was inadmissible, as shown by the bill of exceptions. But, as above stated, the evidence- of- Chandler was hearsay, and was further inadmissible if sought to be used as tantamount to a confession of defendant. If Holcomb himself had been upon the- stand, he should only have been permitted-to testify that he took the pistol from defendant, and not what defendant might have said ; because the defendant at the time was under arrest, and it does not appear that he had been warned that any thing he said would be used as evidence against him. In other words, his declaration did not come within the rules of confession. Code Cr. Proc., art. 750. The charge of the court to the jury is complained of, and we select the following paragraph as declaring a proposition which is incorrect in law: “ Or if you are satisfied from the evidence, beyond a reasonable doubt, that the defendant, Robert Shrivers, did in Cherokee County, at any time before the filing of the indictment, to wit, the 24th day of October, 1879, unlawfully kill Alexander Mills, without excuse or justification, by intentionally cutting and stabbing him, and you have a reasonable doubt whether said killing was done with express malice, you will find him guilty of [456] murder in the second degree.” To have made such a killing murder in the second degree, it would have been necessary for the jury to have believed that the killing was also done with implied malice. As the proposition is stated by the court, the offence would not have been murder in the second degree, but is more nearly akin to manslaughter; which, under our law, is “ voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law.” Rev. Penal Code, art. 593. Without the essential ingredient of implied malice, it was error to instruct the jury to find defendant guilty of murder in the second degree. Another error, as we believe, committed by the court, was in failing to give the defendant the benefit of a charge upon the law of manslaughter. It is true that “insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, * * * are not adequate causes” sufficient to reduce a homicide from murder to manslaughter. Rev. Penal Code, art. 596. But it is to be remembered, in this case, that though it after-wards was ascertained that deceased really had no weapon Upon him at the time he assaulted defendant and took him by the collar, yet, from his movements, parties looking on thought he was trying to draw a weapon; and defendant evidently thought so too, for the brother of deceased, and other witnesses, heard him tell deceased “ not to show” or “ draw” his pistol. Under such circumstances, the law of manslaughter should have been submitted to the jury. It is unnecessary to notice or discuss the other errors complained of, as they are not likely to arise on another trial. For the errors above pointed out, the judgment is reversed and the cause remanded. Reversed cCnd remanded.