Trammell v. State , 145 Tex. Crim. 224 ( 1942 )

ON MOTION FOR REHEARING.

GRAVES, Judge.

The State’s Attorney has filed a motion for a rehearing herein, alleging that we were in error in our holding that the provisions of Art. 728, C. C. P. were violated when the trial court failed to allow Dr. Koepsel to detail the latter portion of a conversation with appellant wherein he said: “I don’t know why he did" that to me; I don’t know why he would do that to me; I had to shoot him” or “I had to shoot.”

It is said of Art. 728, C. C. P. that: “This article expands the common law rule. At common law, when a confession or admission is introduced in evidence against a party, such party is entitled to prove the whole of what he said on the subject at the time of making such confession or admission. But this article does not restrict the expanatory act, declaration, conversation or writing to the time when the act, declaration, conversation, or writing sought to be explained occurred, but extends the rule so as to render such acts or statements admissible, if necessary to a full understanding of, or to explain the acts or statements introduced in evidence by the adverse party, although the same may have transpired at a time so remote as to not be admissible as res gestae.” Greene v. State, 17 Tex. App. 395; Rainey v. State, 20 Tex. App. 455; Harrison v. State, 20 Tex. App. 387, 54 Am. Rep. 529; Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991.” See Note 2, art. 728, Vol. 2, Vernon’s Texas C. C. P. ; Autry v. State, 157 S. W. (2d) 924; Henry v. State, 106 Tex. Cr. R. 198, 291 S. W. 542.

We remain of the opinion that all the conversation had with Dr. Koepsel relative to the transaction inquired about should have been admitted by the court.

The motion will be overruled.