DocketNumber： No. 52.
Citation Numbers： 22 S.W. 50, 32 Tex. Crim. 1, 1892 Tex. Crim. App. LEXIS 86
Judges： Hurt
Filed Date： 12/21/1892
Status： Precedential
Modified Date： 10/19/2024
This is a conviction of murder in the second degree. The State introduced as a witness Mrs. Whitaker, by whom it proved the circumstances attending the killing. Not being satisfied with her version of the transaction, she was asked by the district attorney: “ Did not your boy, Robert Whitaker, say to you when you were relating to Mrs. Kiser and her husband how the killing occurred, “ That the deceased left the gallery and went to the yard fence, where defendant was standing, saying to him, “ God damn you, I would as leave cut your throat as’ I would a damn dog,” and saying, “ You need not think I am not coming, for I am,” and that defendant stepped back two or three steps, got his gun, which was leaning against the fence, and told deceased *16 not to come any nearer or he would shoot him, when he shot and killed deceased,’ and that your boy stepped up and said, No, ma, that was not the way it was. Old man Hall was leaning over the fence when he was shot.’ ” Mrs. Whitaker answered, that her boy Robert did not say anything to her about the killing, whereupon the State placed upon the stand Mrs. McCarty and proved that the boy did use the language to his mother under the circumstances above described; to which appellant objected, because irrelevant and hearsay. What the boy said, if he said anything, was not competent evidence, and hence could not be made the basis of impeachment. If what he said was a fact, the State should have had him on the stand and proved it by him. The remarks of the boy, if he made any, were not admissible for any purpose, and there was error in receiving them in evidence.
We have given the statement of facts a very careful examination, and the Reporter will give them in full, and the conclusion reached is, that the evidence does not warrant a conviction for murder. If appellant is guilty of culpable homicide, it certainly is not of a higher grade than manslaughter.
The judgment is reversed and the cause remanded.
Reversed and remcmded.
Davidson, J., disqualified.