James Bradberry v. The State, 22 Tex. Ct. App. 273

White, Presiding Judge. This indictment, which is for assault with intent to murder, is assailed as insufficient because it does not aver that the pistol—the weapon alleged to have been used in the commission of the offense—was charged, nor does it otherwise allege that defendant had a present ability to inflict an injury. In support of this position we are cited to Robinson v. The State, 31 Texas, 171. That opinion does sustain the position, it is true, but no authority is cited in support of the opinion, and if the doctrine therein enunciated ever was the law it has long since ceased to be so in this State.

The indictment is in conformity with the later decisions and approved forms in this State. (See Wilson’s Crim. Forms, Form 357, p. 161, and authorities cited, and especially Montgomery v. The State, 4 Texas Ct. App., 140, and Payne v. The State, 5 Texas Ct. App., 35; 2 Bish. Cr. Proc., 3d ed., sec. 77.) A bill of exceptions was reserved to the ruling of the court in refusing to permit the witness Haselfield to give in evidence the statements made to him by defendant with regard to the difficulty, which statements, it is insisted, were res gestm and admissible.

Haselfield lived some two hundred yards from the place where the difficulty occurred, heard the firing; after it ceased he went to the place, saw defendant hobbling around, and asked him ‘ ‘ what was the matter. ” c ‘ Defendant told witness to catch his (defendant’

s) horse and bring it to him, and he would tell him all about it. He caught defendant’s horse and took it to him, which occupied about three minutes;” and defendant then made the statements to him about the difficulty which were excluded. Were the statements res gestm ? “There are no limits of time within which the res gestm can be arbitrarily confined.

They vary, in fact, with each particular case. * * * The distinguishing feature of declarations of this class is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate concomitants or conditions of such act, and are not produced by the calculated policy of the actors. They need not be coincident as to time, if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate.

In other words, they must stand in immediate causal relation to the act and become part either of the action immediately producing it or of action which it immediately produces.” (Whart. Or. Evid., 8 ed., secs. 262, 263.) The test is, were the declarations the facts talking through the party or the party’s talk about the facts P Instinctiveness is the requisite, and when this obtains the declarations are admissible.” (Id., sec. 691.) Were the statements of defendant to Haselfield spontaneous, instinctive, generated by excited feeling ? We think not.

When asked to tell about the matter he does not do it, seems to be thinking more about catching his horse than anything else, and only agrees or promises to tell witness if he will first catch his horse and fetch it to him ; and he does not tell him until he has done so, and that, too, after the lapse of about three minutes. This looks very much like a “break or let down” in the continuity of the transaction. In his apparently cool condition and freedom from excitement, the three minutes’ time might have afforded defendant ample opportunity to concoct the statement which was afterwards made to the witness.

We are of opinion the court did not err in holding that the declarations were self serving and consequently inadmissible. An exception was taken to the refusal of the court to give in charge the special requested instruction asked by defendant. In so far as the same presented a correct enunciation of law, it was covered by and embraced in the general charge, and, therefore, it was not error to refuse it. Opinion delivered November 13, 1886. No reversible error has been made to appear in the record of this conviction; wherefore the judgment is affirmed. Affirmed.