Appellant urges that we were in error in disposing of the matter complained of in Bill of Exception No. 3. We do not re-state the question involved, but for an understanding of it, refer to our original opinion. It is claimed that the case of Godwin v. State, 39 Tex.Crim. Rep., does not support the conclusion announced, but that the evidence there complained of is shown to have been admissible as a declaration of the defendant made under circumstances which rendered it available to the state. We are inclined to agree with the appellant in such position. However, we think the appellant is mistaken in his contention that the holding in Gibson v. State, 23 Texas App., 414, 5 S.W. 314; and Lawler v. State, 110 Tex. Crim. 460,9 S.W.2d 259, rules the present case on the point under consideration. Those cases were dealing with an effort to impair or qualify a strictly res gestae statement by a subsequent declaration. The conduct of deceased towards or regarding McCaslin was not res gestae of the offense for which appellant was on trial. As to him it was a collateral matter invoked as showing a specific act of violence on the part of the deceased of which appellant had knowledge at the time he claimed to have killed deceased in self-defense. Appellant sought to show the violent and dangerous character of deceased by proving that his general reputation in that regard was bad. He further claimed to have been informed by deceased himself of the specific act of violence towards McCaslin. Appellant might have rested the matter on the information which he had received (Messimer v. State, 87 Tex.Crim. Rep., 222 S.W. 583), but he went further, as he had a right to do under the authorities, and called McCaslin to prove the occurrence of the specific act of violence in question. In doing so appellant took the chance of the state,
on cross-examination of the witness, developing facts regarding the act which would minimize or discount its effect as an act of violence although such cross-examination might develop facts regarding the act of which appellant had no knowledge. Hysaw v. State, 69 Tex.Crim. Rep., 155 S.W. 941; Bullock v. State, 73 Tex.Crim. Rep., 165 S.W. 196; Johnson v. State, 74 Tex.Crim. Rep., 167 S.W. 733; Messimer v. State, supra; Castleberry v. State, 84 Tex.Crim. Rep.,206 S.W. 353. We think appellant's objection to the testimony of McCaslin that some days after the act of deceased in firing his rifle, the latter told the witness that on said occasion deceased was shooting at a rabbit could not be sustained on the ground that it occurred out of the presence of appellant and that he had no knowledge of such statement having been made by deceased. The act of deceased, as between him and McCaslin, was collateral as to appellant, but had been gone into by him, and the statement of deceased related to a transaction between him and McCaslin regarding which appellant had opened inquiry. If the statement of deceased to McCaslin explained the act which appellant had introduced in evidence, it was admissible although made at a time subsequent to the act under the provisions of article 728, C. C. P., which is quoted in our original opinion. See Greene v. State, 17 Texas App., 395; Bonnard v. State, 25 Texas App., 173, 7 S.W. 862, 8 Amer. St. Rep., 431; Lawler v. State, 110 Tex.Crim. Rep., 9 S.W.2d 259; and the cases cited in paragraph 15 of said opinion.
We undertook in the case last cited to point out the distinction between the holding in the Gibson case and that in the Greene and Bonnard cases, supra. We believe such distinction should be kept in mind in disposing of the question presented in Bill of Exception No. 3.
The argument complained of is set out in our original opinion. The general rule is that in appraising the complaint of argument of counsel there must be considered not only the language used but the setting in which it appears, the evidence in the case, and the verdict of the jury. See Threadgill v. State, 61 S.W.2d 821, and cases therein referred to. Regarding the argument in the light of the entire record, our views remain unchanged that a reversal should not be predicated thereon.
The motion for rehearing is overruled.
Overruled.