Willson, Judge.
I. Defendant was convicted upon his own voluntary confessions made on the day of the homicide. He confessed to a justice of the peace that he had shot and killed the deceased; that he saw the deceased and called to him, and that deceased, who was on horseback, turned in his saddle, and threw his hand behind him, but said nothing, and that he, defendant, then shot him. The homicide occurred June 2, 1882. In January, 1882, defendant told this witness that two men had raped his, defendant’s, step-daughter, and that he intended to kill them, but did not state who the men were. In April, 1882, he told witness that the deceased had raped his step-daughter, and that he intended to kill him. In his confession, made on the day of the homicide, he stated nothing about the rape of his step-daughter. On the next day after the homicide an inquest was held by the witness to whom the confession had been made, and the defendant made a statement in writing on that occasion, in which, among other things, he stated that deceased had raped his step-daughter, and that he ascertained the fact in January, 1882, and that from that time he was determined to put a stop to it, but had never been able to come up with deceased until the day of the killing; that he had met deceased, however, on two previous occasions after he had ascertained about the rape, but could not say anything to him on account of the presence of the family at whose house he had met him.
Defendant offered this written statement in evidence in explanation of his said confession made the day previous, which, on objection made by th e State’s counsel, was rejected. This written statement, it is contended by defendant’s counsel, was admissible in evidence under authority of article 751 of the Code of Criminal Procedure, which reads as follows: “ When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; as where a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration, or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.”
This article expands the common law rule with reference to such evidence. 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. (1 Greenl." Ev., §§ 201-218; Whart. Or. Ev., § 688.) But the above quoted article does not restrict the ex planatory 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 different time, and at a time so remote even as to not be admissible as res gestee.
This article of the Code has not heretofore been considered and construed with direct reference to the question we are now discussing. In the case of Shrivers v. The State, 7 Texas Ct. App., 450, the question was presented and discussed, but without reference to this article of the Code. In that case the statements made by the defendant, explanatory of the statements proved against him by the State, were held admissible as res gestee, and the court said: “ To render such after-declarations or statements admissible as explanations, it must appear that they were made recently after the former, and it must also be obvious from the circumstances that they are not obnoxious to, but come within the exceptions to, the general rule that a party cannot make evidence for himself either by his acts or his declarations.” The rule thus stated would be correct when applied to declarations of the defendant offered in his own behalf as original evidence, and not in explanation of statements or confessions proved against him by the prosecution. (Davis v. The State, 3 Texas Ct. App., 91, and authorities there cited.)
But, in a case like this, where the statements offered are offered only in explanation of defendant’s statements introduced in evidence against him by the State, we can find no warrant in the statute for thus limiting their admissibility. In so far as the language used in the opinion in Shrivers’s case conflicts with the construction we now give to the article quoted, the same is overruled. We are of the opinion that under this article the statement of the defendant made before the inquest, if it be necessary to make his confession fully understood, or to explain the same, was admissible.
The question then is, Can the confession be fully understood without this statement; or does this statement explain the confession? All that we know from the confession is that the defendant saw the deceased riding along a road, and called to him to stop; that deceased made no reply, but turned in his saddle, threw his hand behind him, and defendant then shot and killed him. We fully understand from this that the defendant killed the deceased. But we are not informed why he called to the deceased to halt, or why he killed him. There is nothing in the confession which explains the defendant’s conduct, or which enables us to fully understand his apparently deliberate, unprovoked, and inhuman act. His statement made the next day, however, sheds light upon the tragedy. By that we are told that the defendant had been informed that his step-daughter had been ravished by the deceased; that since receiving such information he had sought to meet the deceased to have a talk with him about this matter, but had not before met him under such circumstances as rendered it proper to mention the subject, and that when he called to deceased to stop it was to have a talk with him, and he so stated to the deceased at the time, when deceased immediately threw his hand behind him, and then defendant fired upon him.
With this statement we fully understand the conduct of the defendant from his standpoint, and it certainly explains that conduct to some extent at least. We think he was entitled to have it submitted to the jury for their consideration, in connection with his confession made the day before, and upon which confession the State relied for a conviction. Its credibility, and the weight to be given to it, were matters for the jury to determine. By the jury it might be wholly disregarded, or it might be credited, and if credited might properly influence them favorably to the defendant, mitigating the punishment, or reducing the grade of the homicide. We are of the opinion that it was material error to reject this evidence, and for such error the judgment must be reversed and the cause remanded.
II. Several objections are urged by defendant’s counsel to the charge of the court. Some of these objections are, in our opinion, well taken, but no exceptions to the charge were made at the time of the trial, and the errors complained of, and which are, in our opinion, well assigned, are not of a character that would require the conviction to be set aside; and as they are not likely to be repeated on another trial, we think it unnecessary to consume time in pointing out and discussing them.
III. It was improper for counsel for the prosecution in the concluding argument to state that if the defendant’s step-daughter had been examined as a witness in the case, she would have testified to certain facts. Such statement was not warranted by the evidence; was not legitimate argument; and was not justified by anything said by counsel for the defendant in addressing the jury. It is unnecessary for us to determine whether we would set aside the conviction if this were the only error committed on the trial.
The judgment is reversed and the cause is remanded.
Reversed and remanded„
[Opinion delivered January 14, 1885.]