Redman v. State , 67 Tex. Crim. 374 ( 1911 )

This case was submitted on rehearing some time since. After a careful review of the record and the questions suggested for revision I am firmly convinced the judgment should be reversed and the appellant awarded another trial. My brethren reached the other conclusion, and, therefore, affirmed the case. Mr. C.F. Greenwood, counsel for appellant, has filed an exhaustive brief and elaborate argument on the questions urged for reversal. I have carefully examined the questions in the light of the brief and argument, and believe that he is correct. Were I to write an opinion I would but follow the general line of thought and authority which he has mapped out and cases cited. The argument is unanswerable, and the authorities cited by him support every proposition under which they are cited, and nearly all of the cases are decisions rendered by this court. These authorities are not discussed by my brethren, but the effect of their opinion is in conflict with them, though they do not so state. Mr. Greenwood's argument is elaborate able and exhaustive, and I hereby adopt it as my dissenting opinion. I do not wish to add anything to what he has written, which is as follows:

"The appellant was charged by indictment with the murder of J.C. Roberson in Hill County, Texas, alleged to have been committed on May 20, 1907. Upon his first trial, which occurred in said county, he was convicted of murder in the first degree, and his penalty assessed at life imprisonment. Upon appeal, the conviction was reversed and remanded by this court. (52 Tex. Crim. 591, 108 S.W. Rep., 365.) Subsequently, the District Court of Hill County, upon its own motion, changed the venue to Ellis County. There have been two trials in the latter county, and the present appeal is from the last trial. Appellant was found guilty of murder in the second degree, and his punishment assessed at ten years imprisonment. The questions involved were all fully presented in motion for new trial, as well as in brief and oral argument upon original submission. These are again raised in appellant's motion for rehearing.

"The deceased was about forty-eight years of age, and with his wife and children resided upon his farm, a few miles west of Hillsboro, in what was known as the ``James Schoolhouse' community. The appellant was twenty-one years of age; was reared in Goliad County, but at the time of the homicide was living with and working as a farm hand for the witness John Hooker in the same neighborhood. It appears from the evidence that he was never arrested before, and the record shows that when he offered to prove his good reputation as a peaceable, quiet, law-abiding young man, the State in open court admitted that his general reputation was good. The undisputed record shows that the killing grew out of the fact that deceased had made a number of damaging statements against Blanche and Kittie Caruth, imputing to each of them a lack of virtue and chastity. They were unmarried female cousins of appellant. They resided with their father and their brother Bert, about three hundred yards from deceased, the deceased being their closest neighbor. Their mother had been dead several years. Miss Blanche was between seventeen and eighteen, and Miss Kittie between sixteen and seventeen years of age at the time of the homicide. The killing occurred upon deceased's premises, between nine and ten o'clock in the morning. The appellant testified that the general reputation of both girls in the community for virtue and chastity at the time of the homicide was good, and this is not a controverted issue in the case. They moved in the best social circles of the neighborhood, and frequently visited in the home of deceased. It is also an uncontroverted fact in the record that deceased and appellant were on the best of terms with each other, up to the time that deceased began assailing the character of said girls, a few days before the killing, and that appellant visited in deceased's home. The evidence shows that appellant was informed of what deceased had said about his cousins, and he testified that it greatly agitated and excited his mind, and that while in this state of mind he shot and killed deceased on account of what he believed to be slander against his cousins. Appellant interposed no plea of self-defense, but contended that he was not guilty of murder in either degree, but was guilty of only manslaughter, and this was his sole defense. The State contended that he was guilty of murder. The court submitted murder in both degrees and manslaughter to the jury.

There are a number of very interesting and vital questions involved in this appeal which can not be appreciated or correctly solved, without a clear, definite knowledge of the evidence, but with this knowledge they are of easy solution. The opinion of the court affirming the conviction does not present the questions, nor deal with them as presented by the record, in the light of the evidence. On Sunday, May 12, preceding the killing on the 20th, deceased and witness R.F. Bilbry were at James Schoolhouse at Sunday-School and singing exercises. The deceased and witness walked out of the house and sat down in a surrey, the deceased telling witness he wanted to talk to him. Witness testified, among other things, that deceased said to him:

``Things were going on a little bad up at Caruths; he said there was a gang of boys around there all the time, and said that I had a boy that was going there some, and he said, I feel that it is my duty, as a neighbor and as a friend, to tell you about it, and he said that Kittie Caruth was in a family way, and was six months gone, and I asked him, "My boy is not having nothing to do with Kittie Caruth, is he?" and he nodded. He says, "He is paying attention to Blanche, Kittie's sister," and I asked him, I says: "Is both girls being talked about?" and he says, "Yes;" and I asked him if "Wess Holmes had not skipped the country?" and he said that he had, and he said that Arthur Redman was too familiar with the Caruth girls."

It appears from the record that these were the first statements deceased made against the girls, and this was eight days prior to the killing. It might be stated here that Wess Holmes was a cousin of deceased's wife, was a single man, and had been in the neighborhood for something over a year, having come from Arkansas. He had been gone from Hill County just two days when deceased made said statements. Late in the afternoon of the day on which the above conversation occurred, deceased and wife went to the home of the witness W.A. Wallace, who lived a few hundred yards east of deceased. Wallace testified that he and deceased walked out in the garden, and while there deceased asked the question:

``If I had heard the news, and I asked him what news? He said that Kittie Caruth was in a family way, and asked me if I had heard it, and I told him I had not. He said it was a common fact, and was positively so, and said that Wess Holmes, a relation of his, had left the country on account of it, and that he thought the charge was laid to Arthur Redman, and that it would be well for him to leave the country, if he wanted to avoid trouble.'

Witness testified the deceased said: ``Mr. Caruth was a very vicious, drinking man, and that defendant would possibly get in trouble with Mr. Caruth.'

This was the second time in point of chronological order that deceased made derogatory statements. Witness testified that on the following ``Wednesday or Thursday' he saw appellant while plowing in Mr. Hooker's field, and related to him what Roberson, deceased, had told him. Witness testifying on this point, said:

``I told him that he was accused of being the father of a child that was to be born to Kittie Caruth, according to Mr. Roberson's statement, and that Wess Holmes had already left the country, and that Mr. Roberson had advised that he leave the country; that it would be best for him to leave the country. I told him that Roberson had said this. He stated to me that so far as he was concerned, he was innocent. I believe the words he used were, that it was a damn lie; that he would investigate it, and said he did not believe it as to the girl.'

This was the first time that appellant heard of any statement made by deceased against either of his cousins, and this information imparted to him involved only Kittie Caruth. He had not yet been informed of any statement against Miss Blanche.

The testimony of the witness John Hooker, whose farm was just east of deceased's farm, shows that on the following Saturday morning, two days prior to the killing, that witness and deceased engaged in a conversation at the dividing fence. Appellant was plowing in Mr. Hooker's field at the time. Among other things, witness states:

``I saw the deceased, John Roberson, about eight o'clock in the morning. We met at the dividing fence. A conversation began about the crops in general, and so on, and in the run of the conversation I asked him if he thought the report on Kittie Caruth, living near him, was true, and he said, "I reckon so," and went on to say that Kittie Caruth had told his wife that hermonthly periods had stopped on her, and asked her as to what she should do about it, and that in November that her sister Blanche had gone to his wife (Mrs. Roberson) about it, and had told his wife that she was afraid that her sister was in a family way, and that that was what was the matter with her, and he (Roberson) said that his wife told her that if she thought that was what was the matter that she ought to talk to her about it, as she was her sister, and the person to talk to her about it, as she had no mother. He said that when she talked to her about it, that Kittie said it was not true, that she was not in a family way, and Mr. Roberson said, "She looks like it to me." I asked Mr. Roberson then who was suspicioned in the matter, and he said, "That boy," and nodded his head in the direction of Redman, who was plowing in the field. "That boy, or Wess Holmes;" that Wess Holmes had left the country, which made suspicion point to him.'

Mr. Hooker's evidence at another point shows that Roberson was on one side of the fence and that witness and appellant were on the opposite side. Appellant heard no part of the conversation, and as appellant plowed by he and deceased said ``Good-morning' to each other. This was the first time that appellant saw deceased after Wallace had told him of Roberson's charges; and because appellant did not kill him on this, the ``first meeting,' the prosecution claimed he was guilty of murder. Up to this time appellant had not heard of any slanderous statements against his cousin, Blanche. He had not heard of all the statements that deceased had made as to Kittie. He had not yet seen Kittie Caruth. He had told Mr. Wallace that he believed Kittie was innocent, and that he ``was going to investigate it.'

In view of the charge of the court it is important to discover what knowledge came to appellant between the ``first meeting' and the time of the homicide, because this has a vital bearing on appellant's legal rights, and upon the charge of the court.

Sam James, an uncle of said girls, testified: ``That some time during the week preceding the killing on the following Monday, he met deceased in the road, and that deceased told him that Kittie was in a family way, and six months gone, and charged that Arthur Redman was the "daddy of it," and that Wess Holmes had left the country, and that Mollie (his wife) had told Wess that he had better open his eyes, and he said Wess was gone, and had left no trace. He said that the boys were going there on rainy days and Sundays, and said, "You know how it is when anything is loose in the country." He said that Wess Holmes, Arthur Redman, Ed Bilbry and Alex Hooker were going there. He said Blanche told Mollie (his wife, Mrs. Roberson), that her father came home drunk one night and wanted her to sleep with him, and told her to lie down on the bed with him until he went to sleep, and that she laid down on the bed there with her father, and her father commenced feeling of her breast, and that she got up and left. He said that Blanche had told Mrs. Roberson this.'

Let it be remembered that appellant knew nothing of these charges made to Mr. James at the time he saw deceased in Hooker's field. Appellant testified that he learned of said conversation on Sunday night before the killing, next morning. The witness Sam James testified that on said Sunday night:

``I told Mr. Wallace in the defendant's presence what Roberson had told me, and I told him that Roberson had told me that Kittie was six months in a family way, and that Arthur Redman was the daddy of it.'

On Sunday, the 19th of May (one day before the killing), deceased and R.F. Bilbry met again at the schoolhouse; deceased then asked Bilbry if he had told his (Bilbry's) folks what he (Roberson) had told him on the previous Sunday, and Bilbry said:

``I told him I did; that I had a talk with Edgar (his son) the next morning . . . and he said that was alright, but he said, "Bert Caruth tackled me for the talk I made out there awhile ago, and I told Bert that this was no place for talking, and he said, "I just wanted to know how to meet it."'

This was the evening before the killing. The evidence shows that late Sunday evening, appellant went to the Caruth home and had a talk with Kittie Caruth, in the presence of her sister Blanche and brother Bert. Appellant testified: ``I went home with Bert that evening; I went up there to find out about this report; when I got to the house I saw Kittie and Blanche there. . . . Bert Caruth was present at the time. Kittie said that Roberson was just telling that to try to ruin her in the neighborhood, and that she didn't like it, and said it was a lie.' Upon recross-examination, Kittie Caruth, who testified as a State's witness, admitted that late Sunday evening, before the killing next morning, appellant talked to her, and, among other things, she testified: ``It was late Sunday evening; Blanche and Bert were both present. Arthur told me that he heard about what Roberson was saying about me, and he asked me if there was any truth in it. I told him it was a positive lie, and I told him that John Roberson was simply trying to ruin me in the community.'

It should be remembered that when Wallace informed appellant on preceding Wednesday of said charge by deceased against Kittie Caruth, appellant said he was innocent and that he believed the girl was innocent, and that he was going to investigate it. He did not have this assurance from her at his ``first meeting' with deceased, because he had not seen her. After seeing and talking with said cousin, which was between sundown and dark, appellant went to the home of the witness W.A. Wallace. We will now deal with what occurred on said night, prior to the homicide next morning. Wallace testified:

``The defendant was at my house that night from fifteen to thirty minutes, and Bert Caruth and Edgar Bilbry were with him. When defendant came in the house I asked him to be seated, that I was busy at the phone, and could not talk to anybody, and he made the statement "that I had never told him anything that compared with what was told him that evening.' . . . While he was at my house that night before I went to Captain James, he seemed to be restless and did not keep his seat long; he was up, and attempted a time or two to talk to me, and I asked him to be seated, and he finally got up and went out on the gallery.'

What had he learned that night that caused him to say to Wallace, ``You have told me nothing, compared with what I have heard tonight?' We shall see. Edgar Bilbry's cross-examination upon a former trial was reproduced by appellant. He had testified as a State's witness upon such former trial, and died subsequently. He testified: ``Up at Mr. Wallace's that night (night prior to killing) Mr. Wallace asked me who told me that I had been going to Caruth's at night, and in answer to Mr. Wallace's question, in the defendant's presence, I told him that my father told me, and the defendant heard this.' Upon redirect examination he stated: ``On Sunday night before the killing, while I was with Mr. Wallace and Arthur Redman on the porch, I told him that my father was told by John Roberson that it was talked around that I was slipping around to Caruth's at night and going in his house at night.'

As to this conversation at Wallace's on the Sunday night in question, the appellant testified: ``Edgar Bilbry told me that night that Roberson had also been talking about Blanche Caruth and him, and had accused him of slipping in, and of sleeping with her at night, and that I had been running a regular whore house there ever since I came to Hill County. That statement was false. I never carried anybody to my uncle's house for immoral purposes, and I had never seen any act of prostitution there, and I had never seen anyone take any liberties with either one of the girls. The girls were just like sisters to me, since I had been there.'

The witness W.A. Wallace and witness Claud Wallace both testified to the restless, agitated condition of appellant at said time and place. After this conversation at Wallace's the appellant, Bert Caruth and Edgar Bilbry left for the purpose of going to Captain James' residence. He was the grandfather of the girls. The witness W.A. Wallace followed them in a few minutes. Sam James was awakened and then Captain James. Captain James, W.A. Wallace and Sam James discussed the situation to themselves. The witness Edgar Bilbry, in detailing what took place then, testified:

``I remember that Bert Caruth made the statement over there, while the matter was being discussed, that he had already investigated Roberson's talk, and that his sister was innocent, and that there was no use to investigate it any further. The defendant seemed restless and bothered, and was walking around, backwards and forwards; defendant remarked: "There's them poor girls; they are motherless and haven't much of a father, and Roberson has thrown out this talk against them, and has ruined them." He said he felt like the girls were sisters to him, and I noticed that defendant was crying, and I heard him say that he was going to Roberson and talk to him like a gentlemen and try to get it straightened out peacefully. He said he was going down to see Mr. Roberson next morning, and would talk to him like a gentleman, and would expect Mr. Roberson to treat him as a gentleman. I heard Bert Caruth say that Robertson's statements were false.'

W.A. Wallace, in testifying as to what happened there, stated: ``My business with Captain James was to talk over the report. While all this was going on the defendant was walking up and down the road in front of the mail box; sometimes he was sitting down and sometimes walking; would sit down a minute and then get up and walk; he was walking up and down the road and appeared restless. . . . I saw the defendant and Sam James together near Mr. James' house that night at the time I have already testified about, and they were having a conversation about the report.'

The witness Sam James in testifying about said occasion, stated: ``Defendant seemed restless that night. When I first went out he was sitting down on a box, with his head down; then he got up and walked around two or three times; the other boys were standing there. I told Mr. Wallace, in defendant's presence, what Roberson had told me.?

Mrs. John Hooker, at whose home defendant lived, testified that during the latter part of said week she noticed the unnatural, restless condition of defendant, and that he lost his appetite.

Appellant, testifying as to what happened at Mr. James' premises on said night, stated: ``Captain James and Sam James and Mr. Wallace went off to one side and had a talk, and then came back where we were, and Captain James told us that they had decided to let older heads settle this, and I told them that Mr. Roberson had connected me with it, and I thought it my place to go and settle it myself, to go and see him next morning. I heardthere that night that Mr. Roberson had told Sam James (I think it was Sam James doing the talking) that Roberson had told him that ever since I had been there I was gathering up the boys on rainy days and Sundays and carrying them in to my uncle's, and that he knew how everything was when there was anything loose in the neighborhood. There was nothing else talked that night down there, except the slanderous reports about those girls. Bert Caruth told us that night that he had investigated it, and found out that there was not anything wrong with the girls, and that he was willing to go to Mr. Roberson and see that he straightened it up. Bert Caruth was talking to me at the time, and I had confidence in what he said. No one that night claimed that the slanderous reports were true, and I had not heard of anyone claiming they were true, except Mr. Roberson.'

The appellant testified that next morning he and Bert Caruth went together to see deceased about said reports. Appellant testified that he was torn to pieces over it, and had been in an excited, ``torn-up' condition several days over it, and that fearing he could not control himself, he asked Bert Caruth to do the talking when they should reach Roberson. Appellant's version of what then transpired is as follows:

``When we got to Mr. Roberson's he was plowing in the field; we went down the road to where he was plowing and he drove out to the end and stopped, and I believe turned his team around, and I went up and spoke to him and Bert said to him: "Mr. Roberson, we came over this morning to talk to you about the report you have been making about my sister," and Mr. Roberson says, "Alright," and Bert asked him why he had made these reports. He said he had told two men about it, Mr. Bilbry and Mr. Wallace, and told it because it was true, and ought to be told, and that he did not know then but what it was true. Mr. Roberson did not make any offer to investigate and try to find out about it. He seemed to be very angry about it, very hot, and we were some six or eight feet apart. When he made that charge I told him that when he said he didn't know but what it was true, I said that any man that said that girl was in a family way was a lying son-of-a-bitch, and he started towards me, and I shot at him when he started towards me. I don't know how many times I shot then, or how many times I shot in the seed house. I was excited so, I do not remember how many times I shot. I believed that his statements were false. I had no suspicion at that time that the girl was in a family way, and did not know it, and I had no suspicion at all that either one of the girls had been guilty of any immoral conduct.'

Upon cross-examination he testified that deceased spoke of ``both girls.' He further stated: I had heard of him talking about both of them before the shooting, and I had been told by Sam James and Ed Bilbry, and I believe Mr. Wallace, and I am as positive that they told me Mr. Roberson was talking about Blanche as I am about any other fact.'

From this somewhat lengthy statement of the evidence the following facts are shown to have been in evidence: First: That Blanche and Kittie Caruth were first cousins of appellant. Second: That deceased uttered insulting remarks about both of them. Third: That on Wednesday or Thursday preceding the shooting, appellant was informed by Wallace that Roberson had charged that Kittie Caruth was in a family way, and had accused appellant of being the author of her pregnant condition. Fourth: That on following Saturday the appellant saw deceased and did not kill him. Fifth: That at the time of said ``first meeting' with deceased appellant had not been informed of any slanderous statements against his cousin Blanche, and had not seen Kittie. Sixth: That late Sunday evening (prior to homicide next morning) he saw her, and she assured him of her innocence, and said that Roberson's statement was apositive lie. Seventh: That on Sunday night he was informed that deceased had been repeating said statement against Kittie Caruth to others besides Mr. Wallace, and had been making serious charges against Blanche, imputing to her a lack of chastity and virtue, and had charged in substance that the home of said girls was like a ``whore house,' and that appellant was guilty of carrying the boys there for immoral purposes, and that deceased had made specific charges of unchastity against Miss Blanche, in connection with Edgar Bilbry. Eighth: That appellant was agitated, restless and excited on said night on account of said charges. Ninth: That appellant was restless and excited when he and Bert Caruth met deceased at time of the shooting. Tenth: That deceased then and there admitted that he had been making said statements, and then reaffirmed and repeated same, and that appellant then began to shoot and killed deceased, and there is evidence that appellant's mind was highly inflamed at the time.

With the foregoing statement of the facts in evidence kept in mind, it should not be difficult to solve the legal questions involved.

The charge of the court, in our judgment, contains a number of serious errors. In paragraph 18 of the charge, the court in submitting manslaughter instructed the jury as follows: ``By the expression "adequate cause" is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. In this connection you are charged that insulting words of the person killed toward a female relation of the party killing is "adequate cause," provided the killing occurs immediately upon the uttering of the insulting words, orso soon thereafter as the party killing may meet with the party killed after having been informed of such insulting words.'

It will be observed that this paragraph makes ``insulting words towards a female relation of the person killing' adequate causeonly in the event the killing occurs immediately upon the uttering of the insults or so soon as the party killing may meet with the party killed, after having been informed of such insulting words.

In further submitting the issue of manslaughter, the court charged as follows, in paragraph 20: When a killing results because of insulting words toward a female relative, which have been communicated to the party doing the killing, the mere lapse of time between the formation of the design to kill, and the killing is immaterial, provided the design was formed when the mind was inflamed by passion which rendered it incapable of cool reflection, by reason of such insults, and such condition of mind existed at the time of the killing; provided, the killing was at the first meeting with the party who had uttered the insulting words, after the party killing had been informed thereof. In determining the condition of the defendant's mind at the time of the killing, you should consider all the facts and circumstances in evidence before you. If you believe the defendant killed the deceased (if he did) because of insulting words by deceased towards Kittie Caruth or Blanche Caruth, both or either of them, and that the killing occurred immediately upon the uttering of such insulting words, or at the first meeting with deceased after defendant had been informed thereof, etc., he would be guilty of manslaughter.'

It will be seen that in three separate paragraphs the court announced to the jury that the killing must occur immediately upon the uttering of the slanderous words, or upon the first meeting with deceased, in order to reduce the homicide to the grade of manslaughter.

Stated in another form: The jury could not convict defendant of manslaughter, unless the killing happened when the insulting words were spoken, or upon the first occasion when defendant met deceased after hearing of said insults. Under this charge the jury could not convict defendant of manslaughter, because, in the first place, defendant was not present when deceased uttered said words. Second, because he did not kill him on ``first meeting,' and therefore under these paragraphs of the court's charge the jury had no option except to convict of murder. The charge of the court in the particulars stated is erroneous and not applicable to the evidence. The error is a serious one and upon a vital point in the case.

The undisputed record shows that up to the time that appellant had his ``first meeting' with deceased he had only been informed that deceased had charged that Kittie Caruth was in a family way, and that appellant was the author of her alleged pregnant condition. It was after this that he was informed that deceased had charged in substance that the Caruth home was like a whore house, and that appellant was carrying a gang of boys there on rainy days and Sundays. He was also informed that deceased had attacked the character of Blanche Caruth, and had charged that Edgar Bilbry was slipping in and staying with her. All this information came to appellant on Sunday night preceding the killing next morning. Besides this, he had not seen Kittie Caruth at time of ``first meeting' to ascertain what she might have to say about said report as to her. She admits that on Sunday evening she assured appellant that she was innocent of the charge, and that she stated to appellant that Roberson's statement was a lie, and that he was simply trying to ruin her in the neighborhood. After said ``first meeting' the brother of said girls told appellant that he had investigated said matter, and that deceased's statements were false. In addition to all this, the evidence shows that at the time of the killing the deceased, in a manner somewhat defiant and emphatic, admitted in appellant's presence that he had been making said statements.

This court has laid down the principle in a number of cases that even though the killing does not occur at ``first meeting,' yet, if deceased continues to repeat the insulting statements, or makes new or additional insulting remarks towards defendant's female relatives, or admits to defendant that he had made such statements, that in such instance each of said statements (communicated to defendant) is a new and fresh provocation, and constitutes ``adequate cause.' This would be a sound proposition of law even if no court had ever announced it. It comports with reason and human experience, and is in harmony with the almost universal experience of men in a civilized state everywhere. The statutes of legislative bodies and the decisions of courts of last resort upon manslaughter, growing out of insulting remarks or conduct towards the female relatives of a man committing homicide, as a result of same, are but a recognition of the laws of human nature that animate and move the minds of men everywhere. But the question as to whether the charge of the court is error is not an original proposition, but has been repeatedly decided by this court: Richardson v. State, 28 Texas Crim. App., 216; Venters v. State, 47 Tex.Crim. Rep.; Tucker v. State, 50 S.W. Rep., 711; Floyd v. State,46 Tex. Crim. 533; McAnear v. State, 67 S.W. Rep., 117; Akin v. State, 119 S.W. Rep., 863; Melton v. State, 83 S.W. Rep., 822; Holcomb v. State, 54 Tex.Crim. Rep.; Young v. State,54 Tex. Crim. 423; Barbee v. State, 58 Tex.Crim. Rep.; Maxwell v. State, 56 S.W. Rep., 62; Bays v. State, 50 Tex. Crim. 548; Canister v. State, 46 Tex.Crim. Rep.; Stewart v. State, 52 Tex.Crim. Rep..

If the principle announced in these decisions is sound (and of its soundness the decisions leave no doubt), then it inevitably follows that the three paragraphs in the court's charge, requiring that the killing must occur at ``first meeting' in order to reduce to manslaughter, when there is evidence of new, additional and fresh provocation, a repetition of the first insults, and then a reiteration of same by deceased to a defendant, is such a fatal error as to demand a reversal.

This error in the court's charge was intensified by paragraph 17 of the charge, in which the court instructed the jury that: ``By the expression under the immediate influence of sudden passion is meant that the act must be directly caused by the passion arising out of the provocation.'

The tendency of this was calculated to lead the jury to believe that the court meant that there was but one provocation, whereas the evidence showed a number of provocations, and it is the law that all of them should have been considered and taken into consideration, and especially as intensifying the one given at the immediate time of the homicide. Orman v. State, 24 Texas Crim. App., 503; Martin v. State, 40 Tex.Crim. Rep.; Freeman v. State,46 Tex. Crim. 322; Manning v. State, 48 Tex.Crim. Rep.; McHenry v. State, 54 Tex.Crim. Rep.; Reinhardt v. State, 133 S.W. Rep., 265.

Although these errors were specifically pointed out in motion for new trial, and discussed in appellant's brief, they are not even referred to, must less discussed, in the opinion affirming the conviction.

In paragraph 21 the court charges as follows: ``If you believe from the evidence, beyond a reasonable doubt, that before the homicide the defendant had had sexual intercourse with KittieCaruth, and was the father of a child subsequently born to her,and you further believe from the evidence, beyond a reasonable doubt, that defendant killed deceased (if he did) not because orpartly because of insulting words uttered by deceased towards Blanche Caruth, but solely because of what deceased may have said imputing a want of chastity to Kittie Caruth, then in such event the homicide would not be reduced to manslaughter, although the defendant had been informed that deceased had stated that Kittie Caruth was in a family way and six months gone, and that defendant was the father of the unborn child, and even though deceased had repeated said statements or admitted that he had so stated in the presence of the defendant at the time of the killing. If, however, you believe the defendant had not had sexual intercourse with said Kittie Caruth (of if you have a reasonable doubt as to whether he so had), and you should further believe that prior to the homicide defendant had been informed that deceased had used insulting words imputing a want of chastity to Kittie Caruth or Blanche Caruth, both or either, and subsequent thereto he met the deceased, and did not act on the information he then had, but that after such meeting or meetings (if any) he was informed of further insulting words that deceased had used towards said Kittie or Blanche Caruth, both or either,and the defendant acted upon such information and killed said J.C. Roberson as soon as he met him, after having been informed of such additional insulting words (if he was so informed) and that such additional insulting words (if any), either alone or in connection with the words of which he was first informed, were the cause which induced defendant to kill deceased, and by reason thereof his mind was inflamed to such a degree as to render it incapable of cool reflection, then same would be adequate cause,' etc.

The evidence showed that deceased coupled not only appellant's name with the pregnant condition of Kittie Caruth, but also the name of Wess Holmes. He had charged that the Caruth home was like a ``whore house,' and that a ``regular gang of boys were going there on rainy days and Sundays,' and said to Sam James, an uncle of the girls, ``You know how it is when there is anything loose in the country.' The court in charging on defendant's rights as to manslaughter, in connection with deceased's insulting remarks as to Kittie Caruth, ignored all said matters, whereas they would have constituted adequate cause, even though appellant had had sexual relation with said girl. Unquestionably, if defendant was informed that deceased had made said statements, this would constitute ``adequate cause' independent of deceased's charge connecting appellant's name with Kittie's. But this feature of the case was lost sight of by the trial court and by this court.

There is a still more glaring error, one that is perfectly manifest on the face of the charge. In said paragraph the court places a restriction and limitation as to the right to kill on account of slanderous words against Blanche Caruth, in that he puts it upon the condition that:

``If, however, you believe the defendant had not had sexualintercourse with said Kittie Caruth, and you should further believe that prior to the homicide defendant had been informed that deceased used insulting words imputing a want of chastity to Kittie or Blanche Caruth (both or either) and,' etc., etc., etc., and the conjunction ``and' runs throughout said paragraph.

In other words, the court made such fact, that is, that appellant ``had not had sexual intercourse with Kittie Caruth,' anabsolute condition precedent to a manslaughter verdict, even though the killing resulted from the slanderous statements as toBlanche Caruth.

Insulting remarks as to Blanche constituted ``adequate cause,'independent of Kittie Caruth's connection with the case. Of this there can be not the shadow of doubt. The statute itself would settle that question.

Under the instruction complained of the jury were not authorized to reduce the offense to manslaughter, unless the evidence showed that appellant ``had not had sexual intercourse with Kittie, even though they believed that the killing resultedentirely or partly on account of the insulting remarks againstBlanche Caruth. This is not the law, and in the very nature of things can not be. It overrides the statute on the subject, and is subversive of the very principles underlying the statutes on adequate cause and manslaughter. The court should have charged on ``adequate cause' as to slanderous statements against Blanche Caruth, without any limitation whatever as to whether appellant had sexual relation with Kittie Caruth, and should have done so by an independent paragraph.

The court should also have instructed the jury in appropriate, definite language that even if the jury believed that appellant had had carnal intercourse with Kittie Caruth, still that if they believed from the evidence that appellant killed deceased on account of insulting remarks towards both said girls, that nevertheless this would be ``adequate cause,' although the killing was partly on account of the remarks as to Kittie Caruth, and the charge as to these matters should have been in direct affirmative form, and not in a negative way. These errors, although of a patent, flagrant nature, and upon the most vital issue in the case, are not even discussed in the original opinion affirming the conviction. How this court can afford to approve the court's charge, in said particulars, in the face of the statutes and the decisions of this court, is inconceivable to our minds. The court, in affirming this case, does not discuss these glaring errors, but says:

``It is elementary that in considering the charge of the court, the whole of it must be considered and taken together. It will not do to pick out here and there some isolated words or short sentences, or even one paragraph by itself, and consider that alone, for when these words, sentences or paragraphs are taken in connection with the whole charge, they would not be subject even to the criticism made against them. In this case the appellant has done this with reference to the charge of the court.'

We say that a charge should be measured as a whole. But surely the errors in a charge should be pointed out specifically. What good would it do to place in a brief or motion for new trial an entire charge, and especially those parts free of error? The rule is to point out those parts that are erroneous, and this we did fully in motion for new trial, in briefs and in motion for rehearing. We have shown that by repetition in three separate paragraphs the court required the killing to be on ``first meeting' in order to reduce to manslaughter. This can not be denied. In this connection we have shown by an unbroken line of authorities that the court's charge in said particular is not the law, under such a state of facts as is disclosed in the record. We have shown that said error was intensified by previous paragraphs of the charge requiring that the ``act must be directly caused by the passion arising out of the provocation,' and that the inevitable effect of this was to create upon the mind of the jury that the court was limiting the passion and adequate cause to only one provocation, and we have shown that this is not the law where there are several provocations, all of which should be considered by the jury as intensifying the provocation and passion. But it may be said that although these errors are on the face of the charge, yet that in paragraph 21 the court cured same by charging on the several provocations, and submitted manslaughter based on insults, at a subsequent ``meeting.' It is a sufficient answer to say that a charge containing independent paragraphs on the same subject in direct and irreconcilableconflict with each other, on a material issue in the case, can not be permitted to stand. It would be impossible to know underwhich of conflicting paragraphs a jury decided a case.

But over and above this, the court in said paragraph 21 made it impossible for the jury to give the appellant a manslaughter verdict, even though appellant killed deceased on account of what he said as to Blanche Caruth, unless, first:

``You believe the defendant had not had sexual intercourse with Kittie Caruth.'

The charge of the court is fatally erroneous and marks a dangerous innovation upon the jurisprudence of this State. It is utterly at warfare, not only with sound philosophic principles which have become deeply inbedded in our jurisprudence, but the charge of the court, in effect, nullifies the statutes of the State upon ``adequate cause' and manslaughter.

The evidence showed that the night before the homicide the appellant, after expressing his esteem for said girls, said that he was going to see Roberson next morning about the reports he had circulated on them, and said that he ``was going to talk to him like a gentleman, and would expect Roberson to talk to him like a gentleman,' and expressed the hope that the matter could be ``settled peaceable,' and that as Roberson had connected his name with the matter, he considered it his duty to see him, etc. Under the law, the appellant had the right to seek Roberson for an explanation, and any self-respecting man, circumstanced as appellant was, would have felt the same way. The court should have charged the jury that appellant had such right, and in appropriate language should have instructed the jury that he had a right to arm himself, and seek the deceased for an explanation. Failure to so instruct the jury was raised by appellant as error. Melton v. State, 83 S.W. Rep., 822; King v. State, 51 Tex. Crim. 208; Gant v. State, 55 Tex.Crim. Rep.; Stacy v. State, 53 Tex.Crim. Rep..

During the trial of the case the State proved by the witness Bilbry, over appellant's objections, that deceased was ``assistant superintendent of the Sunday-School.' The bill of exceptions in reference to this matter affirmatively shows that defendant had made no attack on the character or reputation of deceased. According to a statement placed on the bill by the court, it appears that the theory of the State was that defendant was near the schoolhouse at the time, and that deceased was on the inside of the building attending Sunday-School, and it seems that the court admitted this evidence on the theory that appellant may have seen deceased on inside, through the open window, and that this was a ``meeting' with deceased. The bill shows that appellant did not go in the house, and that no witness claimed that appellant saw him, and the bill recites that defendant testified that he did not see the deceased. It is fundamental in Texas that the prosecution can not prove the character or reputation of the deceased unless the defense has first attacked it. The prosecution had the right to prove that defendant saw deceased, and as evidentiary of the theory that he may have seen him, it was competent to prove that appellant was near by and that the windows were open or raised. It would have been proper to prove that deceased was at or near an open window or walked about in the house, but proof of the fact that he was an assistant superintendent of the Sunday-School would not aid the jury in determining whether appellant saw him. His movements or position could have been described, without placing before the jury the fact that he was an official. Proof that he was a preacher, elder, deacon or a good man would have been just as improper. The evidence complained of was illegal, incompetent and prejudicial to the rights of appellant. It was reasonably calculated to prejudice the jury against defendant and create a sympathy for deceased, and was an indirect way of placing before the jury the standing and character of the deceased, though done in a covert manner. This court in passing upon this error did not confine itself to the bill, but quoted testimony from the statement of facts. This court, in an unbroken line of decisions, has held that a bill of exceptions must be determined by its own recitals, and that the statement of facts will not be looked to for the purpose of aiding or contradicting the bill, and there is no reason why this well established rule should be deviated from in this instance. (White's Code Criminal Procedure, pages 557, 558.) If it be permissible, however, to consult the statement of facts, then it is respectfully suggested that this court did not quote all, nor the most material part of Mr. Bilbry's evidence. He testified:

``I went on in the schoolhouse. I think the deceased was in the house when I went in. The windows and doors of the house were open, and it was a small house, about 20 x 40. I suppose there were fifty or sixty people there. . . . If defendant ever came in the house, I don't remember it, and I don't remember seeing him after I went in, nor after Sunday-School. Neither do I remember seeing him after the conversation with Roberson. . . . When I saw defendant on the Sunday in question he was out about the well, some twenty or twenty-five steps from the house, and I have no recollection of seeing him in the house.'

This testimony is entirely omitted from the opinion. But whether appellant saw deceased or not, the fact that he was ``assistant superintendent of Sunday-School' should not have been admitted.

The next bill relates to the action of the court in permitting Kittie Caruth to bring her young infant into court, in the presence of the jury. It might be here stated that about three months after the killing she gave birth to said baby, and upon the trial of defendant testified that he was its father. The bill shows in substance that defendant by motion presented to the court alleged that she might undertake to bring said baby into the presence of the jury, and have it with her when she would take the witness stand, and the defendant objected to same, because such a proceeding would be illegal, incompetent and prejudicial to defendant, and that the infant was too young to be considered by the jury on the question of resemblance. The trial court evidently knew that these objections were well taken, because he sustained the motion. However, it appears from said bill that during the progress of the trial the State recalled her to the stand, and that she came into the courtroom with said baby in her arms. That defendant's counsel immediately approached the court, and, in a voice that could not be heard by the jury, called the court's attention to what was transpiring, and asked the court to have the baby sent out; that notwithstanding this, the court took no action, and she went on the witness stand and testified ``with the baby in her lap, in the presence and in full view of the jury.' The bill recites, among other things, the following facts:

``The State contended that defendant was the father of saidinfant, and that defendant swore that he had never had any carnal intercourse with said Kittie Caruth, and that he was not the father of it, but that another man was its father. The leading issue upon the trial was as to the paternity of said child.'

The bill shows the utmost diligence on the part of appellant in attempting to prevent this illegal proceeding: He presented a preliminary motion in absence of the jury, and then again, when the orders of the court were about to be violated, he promptly called the court's attention to the fact that the infant was then being brought into court, all to no avail. This court has repeatedly held that evidence as to resemblance on part of an infant to the accused defendant is not admissible. Barnes v. State, 37 Tex.Crim. Rep.; Kilpatrick v. State,39 Tex. Crim. 11; Hilton v. State, 41 Tex.Crim. Rep.; Gray v. State, 43 Tex.Crim. Rep..

The Barnes case was for seduction; the Kilpatrick case was for incest; the Hilton case was for adultery, and the Gray case was a prosecution for rape. To the same effect are Hanawalt v. State,64 Wis. 84; Danforth v. State, 48 Iowa 43.

These cases involved the question as to the paternity of a young child. The following authorities hold that in such instance the jury must not have any ``visual inspection of the child.' In other words, where its paternity is in issue it must not be brought into the presence of the jury. Risk v. State,19 Ind. 152; Overlock v. Hall, 81 Maine, 348 (17 Atl. Rep., 169); Gaunt v. State, 50 N.J.L. 490; Reitz v. State, 33 Ind. 187; Benes v. People, 121 Ill. App. 103.

These decisions are founded on the fact that a young infant should not be taken as a standard of comparison. Its features, the color of its eyes and hair, may undergo a radical change with the passing of months or years. In the case at bar the very charge of the court as to the paternity of this child, and the bills of exception, the statement of facts, as well as the charge of the court, all conclusively show that the trial and the verdict of the jury were made to revolve around the one central, pivotal, overshadowing issue, as to the paternity of the child. This infant was brought right into the presence of the jury. The jury had ample opportunity to look at it; to study its features, and to observe the color of its eyes, hair and its general appearance, and then to silently, but effectually, compare it with the appellant who had helplessly, through his counsel, sought by all legitimate means to forestall and prevent this condition. All the facts and circumstances of this case suggest that this was damaging. Another fact lends probative force to all the objections urged against this occurrence, and that is this: Defendant and Kittie Caruth were first cousins, and the infant could have naturally borne a resemblance to him, resulting from the mysterious laws of nature, and yet he not be its father. This court might speculate as to what conclusion the jury reached as to whether the child favored defendant or not, and as to whether it could resemble him on account of the same blood coursing the veins of its mother, and appellant, by reason of family ties, and yet he not be its father, but why speculate and conjecture when dealing with human life and liberty. Is it not enough to know that the proceeding complained of was illegal and prejudicial to appellant's rights, and that he was convicted not of manslaughter, but of murder in the second degree with double the minimum punishment fixed as his penalty? This court in its original opinion does not discuss this important matter at all, but merely says, ``There is no reversible error shown by this bill.'

The trial court placed an explanation on the bill to the effect (1) that if he had sent the baby out, this would have called the jury's attention to it, and (2) that the incident was not argued to the jury. In the first place, he could have had the sheriff escort the woman and baby back out of the courtroom as she was coming in, and in that event the jury would have had no opportunity to inspect the child, or he could immediately have sent the jury out, without stating why, and then could have instructed Kittie Caruth to carry her baby out of court, and then have had the jury brought back. As to the statement that theincident was not argued to the jury, the court did not mean that State's counsel did not contend that appellant was the father of said child, for the bill shows they did so contend, and variousbills show that she swore that defendant was its father, and this bill and others recite ``that the overshadowing issue in the case was as to the paternity of said infant.' What the court in said explanation means (and it is easily discoverable) is that State's counsel did not call the attention of the jury to the fact that the baby had been brought into court, and profert made of it, and in this sense, the explanation is true. But this is no answer. Certainly, this court does not mean to lay down the rule that if damaging, illegal and prejudicial evidence is introduced against a defendant, that it becomes harmless error when it appears that the same was not argued to the jury. Such a proposition means that arguments have more influence with a jury than evidence, and that it would not be error unless argued to the jury. It was argued from beginning to end that appellant was the father of said child, and it was not necessary to argue said ``incident' that the child was brought into court. Does this court mean to overrule the authorities cited on this question? Does the court mean to place the seal of its approval upon this proceeding, or does it mean to say that the judge's explanation rendered harmless an error that otherwise would have been palpable? That this error should call for a reversal is, to our mind, too plain to admit of any doubt.

The next bill of exceptions shows, among other things, that:

Deceased had charged that Kittie Caruth was in the family way; that defendant was informed that deceased had charged that Wess Holmes or Arthur Redman (defendant) was the father of her then unborn child; that Wess Holmes was an unmarried man living in the neighborhood; that he was a cousin of deceased's wife, worked for the kinspeople of deceased, and had been living in the neighborhood about a year and a half; that after defendant was informed of deceased's said statement he went to see Kittie Caruth about it, and on the stand she admitted that she told him that ``it was false from beginning to end, and that deceased was trying to ruin her in the neighborhood,' and that after this the brother of Kittie Caruth assured defendant that he hadinvestigated it, and that his sister was innocent. The bill shows that the night before the killing defendant, in talking about said matters, showed he was ``restless, excited and crying,' and said that ``Roberson had ruined the girls, and that their mother was dead, and that they did not have much of a father, and that he felt towards them like a brother.' The bill recites that the evidence showed that Roberson was talking about Blanche Caruth also, and that deceased had said that his wife had told Wess Holmes that he had better leave, and that he had gone and left no trace behind and ``that it made suspicion point towards him.' The evidence showed that a day or two before deceased started said reports said Holmes left the country. Ed Hickey (a brother of Mrs. Roberson) carried him a circuitous route several miles out of the way, to Hillsboro, and Holmes immediately left the State. Holmes had been associating with Kittie Caruth, and carrying on a clandestine correspondence with her, which she admits was without the knowledge of her father. She admits that immediately after the shooting, she burned and destroyed all the letters from Holmes. Edgar Bilbry testified that three or four days prior to the homicide Holmes told him ``that Kittie was giving him hell because he was going with another girl,' and that witness asked him what he was going to do about it, and that Holmes replied: ``I don't give a damn; all I go to old Caruth's for, or any other place, is to get this stuff what they sit down on.' The bill recites that Kittie Caruth admitted on the stand not only that she assured defendant the evening before the killing that she was innocent, and that Roberson's statements were false, but that after the killing and before the birth of the baby, she had sworn before the grand jury that defendant had not had any carnal intercourse with her, and that in July, 1907, when the case was called for trial the first time, she assured defendant's attorneys that defendant was innocent, and that she asked them to continue the case, and let nine months pass, so as to prove in that way that deceased's statements were false, and that on said occasion she went inside the bar and sat down by defendant. It further appears from this bill that at different times in February preceding the killing she talked with deceased's wife and took her into her confidence, and told her that her menses were irregular, and that her monthlyperiod had failed to come, and requested her to get some medicine for this condition, and it is recited that Mrs. Roberson then went to Dr. Shoemaker (a relative of Mrs. Roberson's), and told him what Kittie had said, and that the doctor prepared two different kinds of medicine, and that Mrs. Roberson delivered same to Kittie, who took it. The bill shows that Kittie was in the family way at said time, and that Dr. Shoemaker waited on her the night the baby was born, and that the baby was found out in the weeds and brought in, and placed on the bed by her side. The bill alleges that: ``The leading and overshadowing issue in the case was as to the paternity of said child, the State contending through its testimony and argument to the jury that defendant was the father of said child, and the defendant contending and swearing that he was not the father of it,' etc., etc. In this connection appellant placed Mrs. Emma James on the stand. She was Kittie's aunt, and resided only a few miles from Caruth's home. She would have testified that in September, 1909, she received a letter from Kittie, telling her, among other things, ``that I have something to tell you,' and requesting her to come over, and saying, ``Please come over as soon as you can.' That witness went to Kittie's home that afternoon to see what she wanted. That she mentioned to Kittie about having received her letter, and then asked her what it was she wished to tell. That Kittie dropped her hands and said, ``Aunt Emma, I can't tell you this evening, it will take too long; you ask papa to let me come over and spend the day.' It seems that old man Caruth was in another part of the house at the time. Mrs. James, in compliance with Kittie's request, then arranged with Mr. Caruth for Kittie to come to witness' home on Saturday. On Saturday the girl went to Mrs. James' home. Mrs. James was very busy with a number of duties, so late in the afternoon witness asked her what it was she wished to tell her. Finally, after some conversation, Kittie got up and went into the kitchen, and witness followed her, and found Kittie ``with her head hung down,' and Mrs. James said, ``Kittie, you said you had something to tell me, and I see your papa coming, and you had better tell me,' and Kittie said, ``Aunt Emma, I can't, with her face turned away, and I says, ``Why?' and she says, ``I can't, Aunt Emma,' and began to cry. She says, ``I never will swear anymore lies,' and she commenced crying, and I did, too, and walked off.' When the evidence was offered the State objected on the grounds that it was immaterial and irrelevant, and the court sustained the objections and declined to allow the introduction of same. The bill shows that proper predicates had been laid for this testimony, while Kittie was on the stand. Was the testimony admissible? We say it was, beyond the shadow of a doubt. The bill shows that said conversation occurred after the first trial, in Hill County, and after the second trial, which was in Ellis County, and the bill shows that upon both said trials Kittie had sworn that defendant was the father of her said child. The bill further recited:

``That this is the only case in which she had ever testified as a witness.'

The bill further shows that defendant's counsel stated to the court that Kittie's evidence as to the paternity of the child was damaging against defendant, and that the testimony of Mrs. James was offered as a circumstance to show that she had not told the truth as to the paternity of said child, and that at the time of said conversation with her aunt she desired to change her evidence.' This court in passing upon the bill held that said ``evidence was entirely too remote and uncertain to be admissible for the purpose claimed by appellant, or for any other purpose in the case, and the court did not err in excluding it.'

We are at a loss to know how this court reached the conclusion that the evidence was too remote. This bill, and many other bills, the charge of the court, in fact, the whole record shows that the pivotal point in this case was as to the paternity of said infant. The prosecution contended that defendant was thefather of said child, and therefore guilty of murder. The defendant swore he had never had any carnal intercourse with said girl. She had been associating with Holmes, and carrying on a clandestine correspondence with him, and it is made to appear that he fled the country just ten days before the killing, and that Ed Hickey, a brother of Mrs. Roberson, conveyed him to the railway station by a circuitous route, several miles out of the way. It is perfectly manifest that he left in a clandestine and hurried manner. It is also made to appear that just before he left he virtually stated to Edgar Bilbry that his relations with said girl had been prompted by an evil motive on his part. Roberson himself had stated to different parties that Mrs. Roberson had told him to leave, and that he had gone and ``left no trace behind.' It is a significant fact in this record that Roberson did not start said reports until two days after his relative, Wess Holmes, was safely gone. Then the deceased began to charge that ``Kittie Caruth was six months gone, and that Arthur Redman or Wess Holmes was the daddy of it.' The bill further shows that ``shortly after Holmes left, Kittie inquired ofdeceased's wife as to where he was.' Immediately after the homicide she burned all of Holmes' letters. Not only this, the bill further shows that in February she talked with Mrs. Roberson a number of times about her menses having failed to come on her, and Mrs. Roberson then procured medicines from Dr. Shoemaker and delivered it to her, which medicines she took. Dr. Shoemaker was related by marriage to the Robersons. The bill also recites that at the time said medicine was procured that Kittie Caruth ``was in a family way at said time.' The issue as to who was the father of the child was sharply defined in the testimony. Any evidence that would shed light or tend to do so upon this all important point was admissible. This can not be successfully denied. Kittie Caruth had assured defendant the very night before the killing that she was innocent of Roberson's charges. She induced her brother to believe that she was innocent. She admits that a short time after the homicide that she swore before the grand jury that appellant had never had carnal relation with her. She admits that she induced defendant's attorneys to ask for a continuance on the ground that when nine months went by this would prove her innocence, and that on said occasion she went into the courtroom and sat down by defendant, and yet a short time after this, and in three months after the killing, she gave birth to said baby, and in some manner it had been placed in the weeds away from the fence, evidently in the hope that it would die, and then on said night she stated for the first time that ``Arthur Redman' was its father, and this admission was to Dr. Shoemaker, who had prepared the medicines for her in February, at the suggestion of Mrs. Roberson, who was a cousin of Holmes. When she broke down crying, and told Mrs. James that she could not tell her what was on her mind, but ``I never will swear any more lies,' what did she mean? What had caused her to write said letter and bring about the appointment? All the circumstances show she had previously made up her mind to make a revelation to her aunt. The bill shows affirmatively that this was the onlycase in which she was a witness. She necessarily had this case in mind. She necessarily had her previous testimony in this case in mind. The very circumstances show that her conscience was smiting her, that she had done a wrong. Her aunt was her friend, and she desired to make peace with her conscience. Her statement that ``I never will swear any more lies' was equivalent to saying that she had made untruthful statements as a witness. It is certain that she did not mean by this that her original testimony before the grand jury three years previous, that defendant had never had carnal intercourse with her, was false. Why? Because if that was false she had afterwards corrected it by swearing on the trial of the cause at Hillsboro, and still later on the trial at Waxahachie, that he did have carnal intercourse with her and was the father of her child, hence she would have been at peace with her conscience. It is inevitable that she had reference to hersubsequent testimony. It is perfectly obvious that she had reference to this case, because she was a witness in no other case. The only material thing she had sworn to against defendant was that he was the father of her child. The jury were entitled to Mrs. James' evidence. It would, or might, have assisted them in solving the most important feature of the case. The evidence was admissible as affecting the credibility of Kittie Caruth. There is no merit in the objection that it was too remote. Any objections to the testimony would go to its probative force and weight, and not to its admissibility.

This court has held in many cases that it is competent to prove statements of a witness that may show interest, motive or animus. It is equally well settled that any statement of a witness on a material issue may be shown that is in the nature of an attack upon the testimony or truthfulness of the witness, upon such issue. These rules are supported not only by the text-writers, but by the repeated decisions of this court: Watts v. State, 18 Texas Crim. App., 384; Hart v. State, 15 Texas Crim. App., 234; Mason v. State, 7 Texas Crim. App., 623; Blunt v. State, 9 Texas Crim. App., 234; Daffin v. State, 11 Texas Crim. App., 79; Tow v. State, 22 Texas Crim. App., 175; Bennett v. State, 28 Texas Crim. App., 540; Lyon v. State, 42 Texas Crim. App., 506; Magruder v. State, 35 Texas Crim. App., 219; Soger v. State, 11 Texas Crim. App., 110; Bonnard v. State, 25 Texas Crim. App., 195; Green v. State, 54 Tex.Crim. Rep.; Reddick v. State, 47 S.W. Rep., 995; Gelber v. State, 56 Tex.Crim. Rep..

The next bill relates to the action of the court in depriving defendant of Dr. Menifee's testimony. This bill contains all the environments, facts and circumstances shown in the last preceding bill. In said connection the bill shows that defendant offered to prove by Dr. Menifee that on the day of the homicide, Mrs. Roberson had a conversation with him on her back porch, and told him that Kittie Caruth had come to her and gotten medicine from her twice in the last three months for the purpose of bringing on her monthly period, and had ``come the third time and asked herwhere Wess Holmes was, and that she had told her Wess Holmes was gone, and that Kittie then asked her if she did not think that Wess had left her in a bad fix, and that she told Kittie that she was not going to furnish her any more medicine, but was going to leave the matter to Kittie's grandfather.' The bill recites thatas a matter of fact Kittie had reported her condition to Mrs. Roberson, and that the latter had gotten the medicine from Dr. Shoemaker. The court in the original opinion holds that this evidence was not admissible as original evidence, but intimates that whilst it might have been admissible for impeachment purposes, yet that appellant's counsel had not urged its admissibility on that ground in their brief. It is respectfully submitted that the bill shows directly that it was offered also on the ground of credibility, and that this was called to the attention of the court in the briefs. No extended argument was made to show its admissibility on the ground of impeachment, or as affecting the credibility of Mrs. Roberson or Kittie Caruth, for the reason that we deemed an argument on that point unnecessary. The rule is that no matter upon how many grounds a piece of evidence is offered, if it is admissible upon either ground it should be admitted. The proffered evidence being upon a material issue in the case, and admissible for the purpose of contradiction and impeachment should have been admitted. Mason v. State, 7 Texas Crim. App., 623; Deneaner v. State, 58 Tex.Crim. Rep.; Hunter v. State, 8 Texas Crim. App., 76; Bostick v. State, 11 Texas Crim. App., 126; Sanders v. State, 54 Tex.Crim. Rep.; Adams v. State, 52 Tex. Crim. 13; Boatright v. State, 42 Tex.Crim. Rep.; Watson v. State, 9 Texas Crim. App., 237; Hill v. State, 18 Texas Crim. App., 673; Rosborough v. State, 21 Texas Crim. App., 675; Bennett v. State, 28 Texas Crim. App., 540; O'Neal v. State,57 Tex. Crim. 249.

It appears from another bill of exceptions that the State placed R.M. Vaughan, private counsel for the prosecution, on the stand, and proved by him that he had gone to Arkansas and talked with Wess Holmes; that he had received two letters from Holmes since then, and that the State had issued various process for him as a witness in this case, and that Holmes had promised to come and testify as a witness in this case, and that he (Vaughan) hadinformed defendant's attorneys as to the whereabouts of said Holmes, and had told counsel of his postoffice address, etc.

The bill shows that defendant was never notified of Holmes' location, and that the State did not even offer to show thatdefendant had any knowledge of Holmes' whereabouts, and had no knowledge that his attorneys had been notified as to where Holmes was. The defendant objected to said evidence because the evidence showed that defendant had received no notification, and because same was hearsay, and that the notification of his attorneys was not binding on defendant, and because said evidence was illegal, incompetent, immaterial, irrelevant and prejudicial. In the light of reason, as well as the authorities, these objections should have been sustained. The bill shows that Holmes fled the State ten days before the killing, and was conveyed to the railway station by Ed Hickey, a brother of Mrs. Roberson. Defendant had nothing whatever to do with his sudden flight, nor his conduct inremaining away from Texas. Then why should defendant be bound by said evidence? It was not only illegal, but was hearsay as to him. The trial judge placed a statement on the bill to the effect that ``defendant had sought throughout the trial to show that Holmes was the father of the infant, and had fled the country; that defendant had asked for a continuance at a previous term of court on account of Holmes' absence, and that the court had admitted said evidence, because the State could not take his depositions, and defendant could, and that said evidence was admitted ``to rebut the efforts being made all through the trial by implication and indirection to cast suspicion on Holmes.'

This very qualification shows the illegal purposes for which said evidence was used. There is no way to answer the proposition that said evidence was hearsay as to appellant. The qualification shows that the admission of this evidence gave the prosecution an opportunity to argue to the jury that the State was helpless and could not take Holmes' depositions, but that under the lawdefendant could take them, and as he had not done so, then that evidently the defense did not believe that his evidence would befavorable to defendant. And this was used as incriminative of defendant, and according to the court's own qualification on the bill, was used to ``rebut the suspicion on Holmes,' as to thepaternity of said child.

Roberson, the deceased, had put Holmes into this case. He had declared that his wife had told Holmes to leave, and that he ``had gone and had left no trace behind, which made suspicion point to him.' Ed Hickey, a brother-in-law of deceased, had put Holmes into the case by clandestinely helping him to leave the country, and Holmes himself had put his own personality into the case by his admissions to Edgar Bilbry just before his flight, and yet by the court's qualification, the State was permitted to rebut theseand other facts, by proving where Holmes was, and that the State could not take his depositions, and the defendant could. If Holmes was the father of said infant, is it reasonable or rational to suppose for one moment that he would admit it, when to admit it would make him the responsible cause for the tragedy in this case, in the eyes of the public, as well as the indirect cause of an imposition and deception being practiced on this appellant. The fact that a continuance had been sought at a previous term of court on account of Holmes' absence was not before this jury, and is foreign to the issue. The opinion of the court in this case does not discuss this question at all, but simply holds that under the qualification of the trial judge on this bill no error was committed. The qualification of the trial judge not only does not impair the bill, but strengthens appellant's objections. This evidence was not admissible for any purpose, and the objections to it should have been sustained.

We confidently assert that this court has repeatedly decided the following propositions:

(1) The absence of a witness from a trial should not be used against a defendant, unless it is shown that he was instrumental in keeping the witness away.

(2) That it is error to permit the State to prove that it has made diligent search for a witness and tried to produce the witness.

(3) That it is error to permit the State to prove thatdefendant had not tried to produce a witness, and that the State had. Under first proposition: Askew v. State, 127 S.W. Rep., 1037; Clifton v. State, 46 Tex.Crim. Rep.. Under second proposition: Clifton v. State, 79 S.W. Rep., 824; Estep v. State, 9 Texas Crim. App., 367; Favors v. State, 20 Texas Crim. App., 161; Luttrell v. State, 40 Tex.Crim. Rep.. Under third proposition: Clifton v. State, 46 Tex.Crim. Rep.; Hardin v. State, 55 Tex.Crim. Rep.; Sweeney v. State, recently decided; Rushing v. State, 25 Texas Crim. App., 612; Lankster v. State, 42 Tex.Crim. Rep..

This case presents some very strange conditions. Kittie Caruth testified that appellant had carnal intercourse with her once in her father's home; that it occurred in the night; that he had no engagement to come to her bed. That he had never mentioned such a subject to her. That appellant was sleeping with her brother Bert. It was dark and there was no light in the house. She says she does not know what woke her. That appellant never spoke one word to her during the transaction, and that she never said a word to him. That he never mentioned it to her afterwards, and she said nothing about it to him. That her brother Bert and sister Blanche and appellant's sister were all in the house at the time. That she gave no outcry, and never did tell this transaction afterwards, though she says this was the first time appellant had intercourse with her. She says she went to Goliad County a short time after this to visit appellant's people. That appellant had intercourse with her once there in his father's home. That appellant's father and several brothers and sisters of appellant were in the house at the time. That she does not know whether the act occurred in the daytime or night-time, and is not certain which room it happened in. That defendant had no engagement with her in reference to such act, and that he had never mentioned love to her. These are the only acts of intercourse she claims.

A very strange feature of this case is that she does not pretend that she ever called on defendant for medicine, or forany other aid. Instead of calling on him, she tells Mrs. Roberson that her monthly period had failed to come on her, and Mrs. Roberson goes to Dr. Shoemaker, and he prepares and sends the medicines to her by Mrs. Roberson. Mrs. Roberson was a cousin of Holmes, and the doctor was related by marriage to the Robersons.

Another significant fact is that Robertson seems to have known just how far Kittie's pregnancy had progressed. He charged that she was six months in the family way, and it transpires that justthree months after he made this charge that she gave birth to the baby.

With the issue as to the paternity of said infant so sharply contested in the testimony, it was of the highest importance to the legal rights of appellant that the charge of the court should have fully and fairly presented the law on every issue in the case, and that no illegal evidence should have been permitted to go to the jury, and that upon the other hand, appellant should have been permitted to introduce all such facts and circumstances as would, directly or indirectly, bear upon the paternity of said child, or would affect the credibility of Kittie Caruth, on said branch of the case.

In conclusion, we submit that the appellant has not had a legal trial under the Constitution and laws of this State. The law of the case was not given in a proper charge to the jury. The errors in the charge are upon vital issues in the case, and were substantial and important ones. The errors of commission were especially hurtful to the legal rights of appellant. We have also pointed out the errors of omission in the charge. Illegal, incompetent and hearsay evidence was introduced against him. Evidence of a material and important nature in his behalf was excluded. We have discussed no error of a light, trivial nature, but only those that must have had an important bearing on the trial. We have tried to discuss the errors in a faithful manner, and with due deference to this court. We have supported our position on each issue, not only with reason, but by decisions of this court, extending over almost its entire history.

The questions involved on this appeal are important, and of far reaching consequence. Great principles of law are at stake. The final decision to be rendered on these questions will affect, not only appellant, but the jurisprudence of Texas in the years to come, for as certain as the night follows the day, just so certain will these questions arise again."

I respectfully dissent for reasons stated herein.