There was no voluntary return of the property: Grant v. State, 2 Tex. App. 163; Willson's Crim. Stats., sec. 1287. "A person who takes a thing feloniously does not purge the offense by handing it immediately back to the owner": 2 Bishop's Crim. Law, 7th ed., sec. 796.

We have found no error in the conviction, and the judgment is affirmed.

LARCENY-WHAT TAKING SUFFICIENT TO CONSTITUTE. Secrecy is the usual evidence of felonious intent in larceny, but if defendant knowingly took the goods of another, making no claim of right to them, with the intent to deprive the owner of them, he is guilty of larceny: State v. Powell, 103 N. C. 424; 14 Am. St. Rep. 821, and note. The fact that he abandoned the property taken will not alter the offense: State v. Davis, 38 N. J. L. 176; 20 Am. Rep. 367; State v. Farrow, Phill. (N. C.) 161; 93 Am. Dec. 585, and note.

LEWIS V. STATE.

[29 TEXAS APPEALS, 201.]

-

EVIDENCE RES GESTÆ. DECLARATIONS OF AN IGNORANT NEGRO WOMAN, made from half an hour to an hour after she was injured, showing when, how, and by whom the wound was inflicted, when she had not spoken to any one after her injury, are admissible as part of the res gesta, after her death, on the trial of the person accused of killing her.

EVIDENCE- RES GESTE. TO CONSTITUTE DECLARATIONS A PART OF THE RES GESTE, it is not necessary that they were precisely coincident with the principal fact. If they sprang out of the principal fact, tend to explain it, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and admitted in evidence.

EVIDENCE. - DECLARATIONS OF ONE WHO HAS KILLED ANOTHER, SHOWING A WISH TO KILL OTHERS because of their friendship with the decedent, are admissible in evidence for the purpose of proving malice. DEFENDANT, a negro, was indicted and convicted of the murder of his mother-in-law. She had caused him to be arrested for misdemeanor, of which he was convicted, and he threatened to kill her therefor as soon as he should be released from jail. After his release, he went to see her, and assured persons who were at the same house that he did not wish to injure her. They then went away, leaving the accused talking with her, but in a few moments heard her scream, and saw that he was bending her backward against his left arm. He immediately released her and walked away, and thereupon she exclaimed that she had been cut all to

pieces. He claimed that the cutting was done accidentally, in a struggle for the possession of a razor.

J. D. McMahon, for the appellant.

W. L. Davidson, assistant attorney-general, for the state.

WILLSON, J. This conviction is for murder in the first degree, and the death penalty is assessed. Deceased was the mother-in-law of the defendant, and was killed with a razor.

Over objection of the defendant, the state proved, by doctors Hudson and Talley, that within from a half hour to one hour and a half after deceased had been wounded, she stated to them that "Joe Lewis had come up behind her while she was at the wash-tub, ran his hand under her arm, pulled her backward, and cut her nearly in two." The trial judge explains the admission of this evidence as follows: "The testimony shows the deceased to have been an ignorant negro woman, and that between the infliction of the wound and her statement to the doctors she had not spoken, except in a scream or moan, caused presumably from pain; and I believe the circumstances surrounding this ignorant negro woman utterly preclude the idea of deliberate design, but on the contrary, was as voluntary and spontaneous as if uttered when she fell under the blow. The evidence was not offered or admitted as dying declarations, but as part of the res gesta." We agree with the trial judge that the evidence was res gestæ, and admissible. In order to constitute declarations a part of the res gestæ, it is not necessary that they were precisely coincident in point of time with the principal fact. If they sprang out of the principal fact, tend to explain it, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence: Foster v. State, 8 Tex. App. 248; Tooney v. State, 8 Tex. App. 452; McInturf v. State, 20 Tex. App. 335; Powers v. State, 23 Tex. App. 42; Irby v. State, 25 Tex. App. 203. We think the declarations made by the deceased, and admitted in evidence, came within the above-stated rule, considering the circumstances under which they were made, which circumstances exclude the conclusion that they might bave been made with deliberate design, or were fabricated by the deceased.

Anderson, a witness for the state, testified about a conversation he had with the defendant after the homicide, which AM. ST. REP., VOL. XXV.-46

conversation took place in Laredo, Texas. He testified that the defendant told him, in said conversation, that he killed the deceased, and in detailing this conversation the witness further stated that defendant said that he wanted to kill Mr. Kelley and others at Belton who had interfered with him, etc. The statements made by the defendant as to other persons than the deceased were objected to by his counsel, upon the ground that they were irrelevant. The objection was overruled, and a bill of exception reserved, which, although not as full and specific as it should be, will be considered. We think the testimony objected to was relevant and admissible. It was relevant to the issue of express malice. It tended to show that the defendant's enmity towards the deceased was so intense that it embraced her friends. He was speaking about the homicide, and his statements with reference to the other persons whom he desired to kill showed that such desire arose from the friendship of those parties to the deceased, and that it was because of his malice toward her that he entertained malice toward them. This, we think, is a fair inference from the conversation as detailed by the witness Anderson. Statements made by a slayer before, at the time of, and even after the homicide are often pertinent evidence to show express malice: Duebbe v. State, 1 Tex. App. 159; Garza v. State, 11 Tex. App. 345; McKinney v. State, 8 Tex. App. 626. We are clearly of the opinion that the court did not err in admitting the testimony objected to. See also Hart v. State, 15 Tex. App. 202; 49 Am. Rep. 188.

As to the remarks of prosecuting counsel excepted to by the defendant, we see nothing improper in those made by the county attorney. Those made by Judge Kirk were not unexceptionable, but in view of the evidence in the case, could not, we think, have influenced the verdict. Upon the evidence in the case, the verdict could not reasonably have been other than guilty of murder in the first degree, and the murder was of a character so brutal, so fiendish and cruel, that the punishment of death, the highest prescribed by the law, is fully warranted.

There is no error for which the conviction should be disturbed, and the judgment is affirmed.

CRIMINAL LAW - DECLARATIONS OF INJURED PERSON-RES GESTÆ — The statement of a wounded and bleeding woman as to the cause of her injury, terminating in her death, is admissible as a part of the res gestæ, when made immediately after the occurrence: Commonwealth v. McPike, 3

Cush. 181; 50 Am. Dec. 727, and note; State v. Molisse, 38 La. Ann. 381; 58 Am. Rep. 181, and extended note; Druke v. State, 29 Tex. App. 265; Weathersby v. State, 29 Tex. App. 278. Contra, see Mayes v. State, 64 Miss. 329; 60 Am. Rep. 58; Binns v. State, 57 Ind. 46; 26 Am. Rep. 48. EVIDENCE- RES GESTA - WHAT CONSTITUTES. - Res gesta are those circumstances which are the incidents of a particular act, and illustrative of it. They must stand in immediate causal relation to the act, but may be sepa rated from the act by a more or less appreciable lapse of time: Ward v. White, 86 Va. 212; 19 Am. St. Rep. 883, and note; State v. Mathews, 98 Mo. 125.

CRIMINAL LAW - HOMICIDE-PROOF OF MALICE. - Evidence of any facts which go to afford an inference of the existence of malice are adınissible: State v. Deschamps, 42 La. Ann. 567; 21 Am. St. Rep. 392, and note; Walker v. State, 85 Ala. 7; 7 Am. St. Rep. 17, and note. Covert or vague threats made by one in regard to a crime are competent evidence against one charged with its commission: State v. Crawford, 99 Mo. 74; Muscoe v. Commonwealth, 87 Va. 460.

SNELL V. STATE.

[29 TEXAS APPEALS, 236.]

EVIDENCE-DYING DECLARATIONS, WHAT ADMISSIBLE AS. - Declarations made by one after receiving an injury, reduced to writing, and sworn to by him at a time when he did not apprehend death, are admissible in evidence as dying declarations, if he, after becoming conscious of approaching death, and without hope of recovery, refers to and reaffirms such statements, though they are not then shown or read to him. EVIDENCE CONTRADICTING DYING DECLARATIONS. - It is not error to refuse to permit a witness to state that the decedent had made statements different from his dying declarations, if the witness is unable to state the substance of the alleged contradictory statements. HOMICIDE-DEFENSE OF ANOTHER. - ONE BROTHER is justified in interfering in the defeuse of another, when the latter is in an angry struggle with a third person, who attempts to possess himself of a club with the apparent purpose of using it on the brother. The brother thus interfering is justified not only in seeking the club, but, if necessary for the protection of his brother, in striking with it. HOMICIDE-INTENT. — If one brother comes to the assistance of another, who is engaged in a fight, and whose adversary is seeking to obtain a club with which to strike the brother with whom he is fighting, the assisting brother is not chargeable with the murderous intent of the fighting brother, unless it be shown that he knew, or might reasonably have known, of such intent.

JURY TRIAL CRIMINAL LAW. The failure of the judge to instruct the jury upon the law of self-defense is an error calling for the reversal of a judgment of conviction, when there is evidence in the case fairly presenting the issue of self-defense.

INDICTMENT against Charles Snell for the murder of J. B. Whitefield, resulting in a conviction for manslaughter. There as evidence tending to show that while decedent and Samuel

Snell were engaged in a fight, the former ran to get a club; that the defendant, seeing this, ran for the club at the same time, and prevented decedent from getting it, and threw it away; but the decedent, in his dying declaration, claimed that the defendant tried to strike him with his club. There was

no doubt that Samuel Snell, brother of the defendant, cut the decedent with a knife, inflicting wounds from which his death resulted, but the defendant claimed that he had nothing to do with this, and did not know that his brother had or intended to use a knife, and that defendant did not take any part in the fight, except to get and throw away a club which decedent tried to get for the purpose of striking defendant's brother. The next day after receiving his injury, the decedent made a statement which was reduced to writing, and sworn to by him. Six days afterwards, and when decedent had become satisfied he could not recover, he referred to his prior statement, saying that it was true, and that he had sworn to it, and would make no more statements.

D. G. Smith and W. B. Dunham, for the appellant.

W. L. Davidson, assistant attorney-general for the state. WILLSON, J. We are of the opinion that the statements of the deceased, reduced to writing and signed and sworn to by him before the witness Fletcher, were properly admitted in evidence as dying declarations, it having been proved that the deceased was fully cognizant of said statements, and that afterwards, when he was conscious of approaching death, and was without hope of recovery, and was sane, he reaffirmed said statements. In Wharton's Criminal Evidence, 9th ed., sec. 287, it is said: "Prior declarations, though in themselves inadmissible, may become admissible, on subsequent affirmation, in cases where, although the declarant did not at the time of first making them believe he was about to die, he subsequently referred to them and affirmed their truth at a time when he knew he was dying." See also Mockabee v. Commonwealth, 78 Ky. 380. It was not necessary, we think, that said statements should have been shown to or read over to the deceased at the time he reaffirmed the same, as it was clearly proved that he knew and fully understood the same, and he referred to and adopted them at a time when he knew he was dying and just before his death, and when requested to make a dying declaration.