Stevison v. State

• Decision Date: 15 November 1905
• Citation: 89 S.W. 1072
• Parties: STEVISON v. STATE.
• Court: Texas Court of Criminal Appeals

89 S.W. 1072

STEVISON v. STATE.

Court of Criminal Appeals of Texas.

November 15, 1905.

Appeal from District Court, Kaufman County; J. E. Dillard, Judge.

Tom Stevison was convicted of manslaughter, and appeals. Reversed.

Ed Sewell, for appellant. J. S. Woods, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of manslaughter, and his punishment fixed at confinement in the penitentiary for five years.

The first bill of exceptions shows "that W. A. French was called as a witness for the state, and testified that he was at his table eating breakfast, when he heard the shooting at the negro cabin, from 100 to 170 feet from his residence, on the same block on his premises at which Tom Nash was killed by the defendant, Tom Stevison, that upon hearing the shooting he ran to his back door, and there met Mary Stevison (wife of defendant) who seemed to be very much excited. Then the following question was asked witness, by the county attorney. `What did Mary Stevison say to you when you met her at the door, if anything?' And he answered, `I asked her what was the matter.' She told me Tom Stevison had killed Tom Nash there at the cabin, and tried to kill her. Tom accused Tom Nash with staying with me, Tom Nash denied it, and Tom Stevison pulled his gun and began shooting Tom Nash." Appellant objected to the admission of this testimony because Mary Stevison was the wife of defendant —because irrelevant and immaterial, hearsay, narration by a third party of what happened, not res gestæ, the exclamation of a bystander not in the presence of defendant, etc. We do not think this testimony was admissible. As far as the res gestæ part of it is concerned, waiving other objections, it comes within the rule; but the wife of defendant was merely a bystander, within contemplation of law, and her testimony would be inadmissible. For a discussion of this subject see Felder v. State (Tex. App.) 5 S. W. 145; Williams v. State (Tex. Cr. App.) 51 S. W. 226; Nix v. State (Tex. Cr. App.) 74 S. W. 764. The declarations of bystanders, not within the knowledge of defendant at the time of being made, are not and cannot be made res gestæ. If these declarations had been made in the presence of defendant, the state might have justly insisted upon its admission, because it called for a reply from defendant; and that silence gave consent and acquiescence in the same. But, as the bill shows, having been made out of the presence of appellant and after the homicide had taken place, he having no knowledge and giving no tacit consent thereto, the same was irrelevant and immaterial testimony, hearsay, and highly prejudicial to the rights of appellant. The twenty-sixth paragraph of the charge attempts to limit the testimony above discussed, and tells the jury in substance that such testimony cannot be considered in determining whether or not defendant is guilty of murder or manslaughter in killing deceased. It follows,...