CHARLESTON.

#### State *v.*Thelma Johnson

(No. 6411)

Submitted April 10, 1929.

Decided April 16, 1929.

*217
      *J. Raymond Gordon*and *M. F.*Matheny, for plaintiff in error.

*Howard B. Lee,*Attorney General and *W. Elliott Neffien,*Assistant Attorney General, for the State.

Lively, Judge:-

Upon the trial of an indictment for the murder of one Dave Myers, the defendant, Thelma Johnson, was convicted of voluntary manslaughter and sentenced to three years in the penitentiary. This writ followed.

The errors relied upon for reversal are the exclusion of certain evidence offered on behalf of the defendant, and the refusal of the trial court to set aside the verdict as contrary to the law and the evidence.

The record discloses that on October 16, 1927, the day of the fatal shooting, at about 2:30 o’clock in the afternoon, as the defendant was entering her home at No. 2 Frank court, Charleston, the deceased followed and struck her on the back of the head, knocking her into the front room, and continued the assault as she retreated to the rear of the house where he struck her again and knocked her against a dresser. It was then, according to defendant’s testimony, that, being in imminent fear of death at the hands of the deceased, she secured a pistol from a dresser drawer and fired two shots at him, one of which penetrated his abdomen, causing death a day or so later. For at least a year prior to the fatal shooting, the relations between deceased and the defendant had been very intimate, and during a part of this time they had lived together.

Upon the trial, the defendant in support of her plea of *218self-defense was permitted to testify to previous assaults made upon her by the deceased, but the trial court refused to permit other witnesses for the defendant to testify to the same assaults. The rejection of this evidence is relied upon as the chief ground for reversal.

The State contends that the evidence of the prior assaults was not admissible because they had been condoned by the defendant, and furthermore, if such evidence was admissible, the defendant having been permitted to testify in regard thereto, the exclusion of this cumulative testimony did not constitute prejudicial error.

There can be but little doubt that that evidence as to previous assaults made upon this same defendant, even though they may have antedated the killing by three weeks to five months, and even though the parties may have lived together after the assaults took place, was admissible to show the state of feeling or relations existing between the deceased and the defendant, and as bearing upon whether the latter was justified in believing her life to be in imminent danger when she fired the fatal shot. Yol. 2, Wharton’s Criminal Ev. (10th ed.), sec. 918, page 1276, and sec. 925, page 1756; *State*v. *Hardin,*91 W. Va. 149; Vol. 1, Wigmore on Ev. (2nd ed.), sec. 248; *Reg.*v. *Hopkins,*10 Cox Cr. 229. Can it be said that the defendant has not been prejudiced by the exclusion of this testimony tending strongly to corroborate her in this vital point of her defense. We believe not. She was on trial for her life, and it may be that the jury taking that fact into consideration would not be inclined to give her testimony the same credence or weight as that of some disinterested witness. *Washington Gold Min.*& *Mil. Company*v. *O’Laughlin,*105 Pac. (Colo.), 1092; *Domm*v. *Hollenbeck,*102 N. E. (Ill.), 782, Ann. Cas. 1914B, 1272, 1276. It was error to reject this testimony.

The defendant further assigns as error the refusal of the trial court to permit the introduction of a statement alleged to have been made by the deceased in the presence of certain police officers at the hospital, a short time after the shooting, to the effect that he, the deceased, was at fault. This evidence was objected to because it was not shown that it was a dying *219declaration. It was offered by tbe defendant as a part of tbe *res gestae.*Tbe trial court took tbe view tbat tbe alleged statement was not a part of tbe *res gestae*and refused to permit its introduction. It is not clear at wbat time after tbe shooting tbe statement was made. It is shown tbat tbe officers responded. immediately upon being called to tbe defendant’s borne, and tbat they went to tbe hospital when they learned tbe deceased bad been taken there; but it does not appear bow much time bad elapsed after tbe shooting before tbe officers were summoned. Because of this indefiniteness of time, we believe tbat tbe trial court ruled correctly in excluding this testimony as a part of the *res gestae.*It is true tbat tbe time at which a declaration is made is not alone determinative, but it is an important fact to be considered in deciding whether a particular statement was a spontaneous one, and consequently part of tbe *res gestae.*It may be well to note, however, tbat bad this evidence been offered for tbe sole purpose of impeaching tbe dying declaration, introduced by tbe state, alleged to Lave been made by tbe deceased a few hours before bis death, in which be stated tbat be made no assault on the defendant, but tbat she shot him just after be had entered tbe bouse, it would have been admissible. Declarations made by tbe deceased contradicting bis dying-declaration in respect to tbe party accused of tbe homicide and as to tbe cause and circumstances of tbe crime are admissible to impeach him, though they were not shown to have been made under a sense of impending death, and( as it is generally impossible to do so), it is never necessary tbat tbe attention of tbe deceased should have been called to tbe occasion and circumstances of tbe contradictory statements.” Underbill’s Criminal Evidence, (3rd ed.), see. 180, pp. 253, 254.

In mew of the conclusions reached herein, it will not be necessary to consider tbe remaining assignment of error, tbat tbe verdict is contrary to tbe law and tbe evidence. Tbe judgment will be reversed, tbe verdict set aside, and a new trial awarded.

*Reversed; verdict set aside; new trial awarded.*