Russell v. State , 84 Tex. Crim. 245 ( 1918 )

The conversation with Gilchrist, set out in the original opinion, was held admissible on the theory that it went to show the malevolent disposition and design of appellant toward all persons, known or unknown, whom he should identify as causing, inspiring, or participating in the assault upon Houghton, and the extent to which his malignance would be carried. Touching a similar transaction, Judge Ramsey, writing an opinion for this court said, "That part of his declarations in which appellant expressed himself as ready for trouble, would be admissible with the view of showing, in connection with his act of preparation, reckless disregard of the safety of anyone and everyone who might antagonize him and as showing a malignant disposition of all persons or at least such class of persons, as might or would embrace the deceased." Helvenston v. State, 53 Tex. Crim. 640. See also Miller v. State, 31 Tex.Crim. Rep.; Taylor v. State, 44 Tex.Crim. Rep.; Wharton on Homicide, sec. 90; Wharton's Crim. Ev., sec. 756 and sec. 709.

That part of the testimony of Gilchrist quoting appellant as saying: "I would just as soon kill you as anyone," taken in connection with the remainder of the conversation, we did not regard as trenching on the rule excluding threats against third parties. Wharton's Crim. Ev., sec. 910. That part of the testimony quoted, however, we have, on further reflection concluded should not on another trial be admitted, there being no suggestion in the evidence that the witness Gilchrist was in any way connected with the injury of Houghton, nor that appellant so regarded him. To the extent that the expression "I would just as soon kill you as anyone" in Gilchrist's testimony was held admissible, the original opinion is modified, and on another trial that expression should be excluded, appellant's motion for rehearing is in all other respects overruled.

Overruled.