Page 38
289 S.W. 38
HENDRIX 
v. 
STATE.
(No. 10487.)
Court of Criminal Appeals of Texas.
December 15, 1926.
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        Dutch Hendrix was convicted of burglary, and he appeals. Reversed and remanded.
        Bryant & Goar, of Wortham, and P. O. French, of Fairfield, for appellant.
        Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the 
State.
        LATTIMORE, J.
        Conviction in district court of Freestone county of burglary; punishment, five years in the 
penitentiary.
        There is but one bill of exceptions, by which complaint is presented of the admission of the 
testimony of witness Perkins, who gave evidence of the fact that some time after the commission of the 
alleged offense, and upon the same night, the owner of the alleged burglarized premises came to his 
house and told him that appellant and another were the parties who committed the offense. This was 
admitted by the court upon the theory that it was res gestæ.
        The home of Alfred Dunbar was entered in the nighttime by two persons, who broke into a room 
occupied by the two daughters of Dunbar, and began an assault upon said two girls, who gave the alarm, 
and Dunbar went into the room with a shotgun, and in the difficulty that ensued fired his shotgun twice 
and the marauders made their escape. The defense was alibi. Dunbar, his wife, and daughters testified to 
the identity of appellant as one of the two men. By a number of witnesses appellant sought to establish 
that he was at another and different place on the night in question. The issue of identity was sharply 
contested.
        The witness Perkins said that he lived 300 or 400 yards from Dunbar's house, maybe a little farther; 
that he heard the shooting there on the night of the alleged burglary — heard two shotgun shots first, and 
later a pistol. On direct examination he testified that Dunbar came to his house that night, about 15 or 20 
minutes after the gun fired, might have been 15 or 25 minutes, and when he walked up to witness he 
said: "Did you hear the trouble I was in down there?" Witness replied that he heard the shots, and asked 
what it was, and who they were, and Dunbar replied: "Dutch Hendrix and Clarence Banks." On cross-
examination this witness testified: "I heard the pistol fire one time after the two shots from the shotgun;" 
that the pistol shot was about 25 minutes, possibly, after the shotgun was fired, and after the pistol was 
fired Dunbar came to his house.
        We have examined the bill of exceptions, as well as the testimony of this witness, set out in the 
statement of facts, and find in neither any showing of excitement, agitation, or other facts supporting the 
proposition that when Dunbar reached the home of Perkins he was in such condition as seems made 
requisite, under all the authorities, in order to make such statement admissible as part of the res gestæ. 
The prerequisite of a res gestæ statement is spontaneity, and this is a deduction from facts, and such 
facts are usually necessary as would show there has been no change in the mental condition of the party 
making the statement from the time of the occurrence until the statement is made. We know of no 
authority holding that one who makes a statement 15 or 20 minutes after the occurrence, which 
statement is made calmly and coolly and collectively, can have the statement held admissible on the 
theory of res gestæ.
        Statements made 15 minutes after a homicide, not shown by the bill of exceptions to have been 
made under agitation or excitement, or without break, were held inadmissible in McNeal v. State (Tex. 
App.) 43 S. W. 792. See Brown v. State (Tex. Cr. App.) 44 S. W. 174; Ford v. State, 40 Tex. Cr. R. 283, 
50 S. W. 350; Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496. It is said there is no limit of time in which 
the res gestæ are arbitrarily confined, but that they vary with each particular case, and that they need not 
be coincident as to time, if they are joined by the existing feeling without break or letdown, from the 
moment of the event they elicit. McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bronson v. State, 59 
Tex. Cr. R. 17, 127 S. W. 175; Rainer v. State, 67 Tex. Cr. R. 87, 148 S. W. 735. It is also stated that 
statements made in response to leading questions which have not the elements of instinctiveness or 
spontaneity are not admissible. Faulkner v. State, 43 Tex. Cr. R. 325, 65 S. W. 1093; Chapman v. State, 
43 Tex. Cr. R. 338, 65 S. W. 1098, 96 Am. St. Rep. 874; Lockhart v. State, 53 Tex. Cr. R. 593, 111 S. W. 
1024.
        Being unable to find justification for the admission of this testimony, the only possible
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claim for same being res gestæ arising from the fact of the nearness in point of time, and there being no 
showing of any of the other requisites of res gestæ, we are constrained to hold the admission of this 
testimony erroneous. It was upon a very vital issue in the case, and may have been appropriated by the 
jury to the injury of the appellant.
        For the error of the court in admitting same, the judgment is reversed, and the cause 
remanded.