Full opinion text
LATTIMORE, Judge. Conviction for murder; punishment, 5 years in the penitentiary. Upon rehearing, the original opinion is withdrawn and the following substituted therefor: Appellant owned a large ranch on which he lived. No other dwellings were near his. Lundy rented land from appellant for rice cultivation, and his house was nearest that of appellant. The rice had been cut and shocked. Ponds, ditches, levies, laterals, and much water were around the scene of the shooting, which was in Lundy’s rice field not far from the edge of appellant’s pasture. The growth between Lundy’s field and appellant’s house was sparse and scattered, in some places more than others. Appellant’s wife was in Houston. She claimed that he came home from Houston on November 16th. No one else seems to have lived at appellant’s house. No effort was made to show the presence at or around said house or premises on November 17th of any person save appellant himself. There was a hard rain on the night of the 16th. On the morning of November 17th, three boys were going across appellant’s- pasture toward Lundy’s rice field. There was one shotgun in the crowd. Emory Fisher, one of said boys, was sixteen years of age, and related to appellant. At a certain point Fisher took said gun, left his companions, and went some distance away and shot at some ducks on a pond. Just after he fired, the sound of a rifle shot was heard to come from at or near appellant’s house. Witnesses located the sound as coming from near a big gate south of the house; the boys being at the time in a general southerly direction from said house. The bullet from this rifle shot knocked up water in said pond near Fisher. He started back toward the other boys. Three more rifle shots were fired from apparently the same place. The other boys said they heard the bullets sing. One of them came so close to Fisher that he turned his head- and called out to the others: “The old man like to have got me that time.” Testimony was to the effect that from the big gate mentioned parties could be seen down near where the boys were. Evidently the party shooting could see Fisher, as evidenced by the nearness of the bullets to him. The record is wholly bare of any showing that Fisher, from where he was at the time he was shot at, could not see who was doing the shooting. In bill of exception No. 2, complaining of the admission of the statement quoted' above, it is said that in overruling the objection the court stated to appellant’s counsel that he could not tell what the deceased saw or knew. The witness testifying to this statement was the first witness introduced on the trial, and testified to said statement almost in the beginning óf his testimony. It is observed that when called on to review rulings of trial courts in such matters, we must pass on the objections as same appear in the record, in the light had by the trial court when he was called on to rule, as far as we can get it. The objections to this testimony was, first, that the statement was not made in the hearing of appellant; second, that no person was named or identified in said statement. The first ground of objection was clearly untenable. The statement was plainly res gestae. The bullets were singing past the heads of Fischer’s companions and going in close proximity to him when the statement was made. Four rifle shots were fired, as testified to, from near the big gate up by appellant’s house. In five minutes thereafter, as estimated by, a witness, another volley of five rifle shots were fired at the same boys, and beyond question by the same party, who see'med at this time a little nearer the boys than when' the first shots were fired’. The first shot of this second volley sent a bullet into Fisher’s back going through his body. As one of his companions bent over the fallen boy, another bullet whizzed between his legs and buried itself in the ground. Fisher was carrying the only gun had among the three boys, at the time both volleys of rifle shots were fired. As said above, Fisher knew appellant well; was related to him. Appellant was sixty-seven •years old and would reasonably be referred to as an old man. The shooting was all from the general direction of appellant’s house and at a party within the view of the one shooting, and there seems no reason to- believe but that the party shooting was likely within the view of Fisher when he made the statement. When the language used is such, or used under circumstances which make reasonably evident who the party is therein referred to, it would be admissible testimony, and its weight would be a question for the jury. Many cases appear where no name was used in the res gestae statements held admissible, but in such cases the surroundings sufficiently show to whom reference is made. Thompson v. State, 19 Tex. App. 593, 613; Kennedy v. State, 19 Tex. App. 618, 631; Means v. State, 10 Tex. App. 16, 23, 38 Am. Rep. 640; Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; McInturf v. State, 20 Tex. App. 355; Shumate v. State, 38 Tex. Cr. R. 266, 42 S. W. 600; Foster v. State, 8 Tex. App. 248, 251; Lewis v. State, 29 Tex. App. 201, 204, 15 S. W. 642, 25 Am. St. Rep. 720; Girtman v. State, 73 Tex. Cr. R. 158, 162, 164 S. W. 1008; Jeffries v. State, 9 Tex. App. 598, 602; Hardison v. State (Tex. Cr. App.) 85 S. W. 1071. The rule laid down in Wooley v. State (Tex. Cr. App.) 64 S. W. 1054; Gray v. State, 47 Tex. Cr. R. 375, 377, 83 S. W. 705; Clark v. State, 56 Tex. Cr. R. 293, 297, 120 S. W. 179; Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728, and other cases, relates to the impropriety of receiving testimony reflecting the undisclosed motives and intentions of the injured party causing him to do certain things whose doing was relied on as affording justification for the alleged penal act on the'part of the accused and has no application here. We have no doubt of the admissibility of said statement as against the obj ection urged. The state offered testimony showing that somewhere in the neighborhood of 10 o’clock on the morning of November 17th, an officer arrived at the scene of the shooting. He presently went up to appellant’s house, finding no one at same. He looked around the premises. Out near the big gate referred to he found tracks made since the rain, but not distinct enough to enable him to identify. Just beyond the gate was grass, and on this grass some yards from the gate he found three freshly shot shells. The officer went in the house and found in the corner of a room a rifle. He expressed the opinion that the shells he found would fit this rifle. Looking further he found in the horse lot tracks showing where a man had saddled a horse, led him to the gate, and there gotten on him. ‘ This would indicate that the tracks in the horse lot were made after the tracks at the big gate, inasmuch as the officer testified that after observing the place where the man got on the horse, he presently saw appellant out east of his house on horseback having some stakes in his arms. He said he waived to appellant who came up, got off his horse, and when he did so the officer compared the tracks then made with those made by the man who led the horse from the lot, and he said they were exactly alike. The officer further testified that there was a telephone in the house. He said no one was called from said house after he got there, but that some thirty minutes later appellant’s children began to arrive from a town some ten miles away where they lived. The record is bare of any showing of who gave these children the information concerning appellant which led them to come to the premises. One of them testified that he had heard that appellant was charged with the killing of Fisher. The record does not show that any charge had been made against appellant until after the officer took him away from the premises. Parties who examined the premises and made observations testified that from the big gate mentioned persons down in the vicinity of where the boys were could be seen. , The state offered testimony that on the day before this killing appellant had shot with a rifle at two men who were duck hunting on his place. .Dickerson, one of these men, testified that he was calling ducks up to him; suddenly they flew; he raised up to see who had disturbed them, and ap'pellant from some weeds shot at witness, the ball passing near his head. This witness said appellant was too far away to be shot at with a shotgun, so he saw nothing else to do except to fall down for protection in some mud and water behind a levee. From this point- he heard a man named Stout shoot at some ducks and saw appellant go toward Stout and later shoot at him with a rifle. Dickerson also-testified that at a prior time he and another were hunting ducks in the same vicinity, and appellant rode up, called them to him, cursed them, and demanded to know what they were doing and if they did not know that he did not allow hunting on his place. He had his rifle in his hand. He said to the parties that he ought to have killed them from the hillside, but that he would give them a chance. He "ordered them to get their decoys and get away. Witness said he proceeded to gather his decoys, and appellant, who had ridden some distance, fired with his rifle and broke the decoy in the hand of witness. Stout, the other duck hunter, testified that appellant shot at him while he was hunting in Lundy’s rice field. Mr. Ivey testified that something like a week before this killing he and another were in appellant’s place duck hunting. He said appellant, with a rifle in his hand, came up to them and wanted to know how they came to be in there and what they-were doing. .They told appellant that they were duck hunting and had permission from Mr. Lundy. Appellant told them Lundy had nothing to- do with it, that the land was his, that he had them where he wanted them, and that he had a good mind to kill them and leave them lying there. Objection to all this testimony appears in several bills of exception, on the general ground that same related to separate, disconnected and extraneous offenses and transactions, and was. hurtful and prejudicial to appellant. This was a case of circumstantial evidence. The state’s theory evidently was that appellant entertained malice and evil intent toward all hunters of ducks on his place, and that all this testimony was admissible as shedding light on appellant’s intent in shooting at deceased who was hunting ducks on appellant’s premises when he was killed. We would have no hesitation in saying that in a case like this, where the accused was charged with and convicted of the killing of a young relative of his against whom there is not a suggestion of ill will or malice on his part, save such as might arise out of the fact that deceased was at the time engaged in duck hunting on appellant’s premises, that proof of the fact that appellant entertained animosity and ill feeling toward all parties who hunted ducks on his land, as evidenced by threats made by him against such hunters as a class, would be receivable in evidence. Such we understand to be the doctrine laid down in Miller v. State, 31 Tex. Cr. R. 609, 636, 21 S. W. 925, 37 Am. St. Rep. 836; Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817; Taylor v. State, 44 Tex. Cr. R. 547, 549, 72 S. W. 396; Helvenston v. State, 53 Tex. Cr. R. 636, 638, 111 S. W. 959; Hiles v. State, 73 Tex. Cr. R. 17, 21, 163 S. W. 717; Hill v. State, 35 Tex. Cr. R. 371, 375, 33 S. W. 1075; Russell v. State, 84 Tex. Cr. R. 245, 209 S. W. 671; Martin v. State, 107 Tex. Cr. R. 151, 164, 295 S. W. 1098; Paulk v. State, 107 Tex. Cr. R. 174, 178, 296 S. W. 588; Scott v, State, 113 Tex. Cr. R. 265, 20 S.W.(2d) 426, and other cases. We do not think this principle applicable only to cases where proof of malice toward a class rests solely on words spoken by the accused. It would seem that if mere words can show such malice and evil intent, the deeds of the party could be put before the jury as stronger evidence showing his feeling and animosity in such cases. In Frazier v. State, 93 Tex. Cr. R. 134, 135, 246 S. W. 391, 392, we quoted from Branch’s Annotated P. C. § 2347, as follows: “Proof of other offenses is admissible if such proof is a part of the res gestae of the alleged-offense for which defendant is being tried, or -if it tends to show intent when intent is an issue, or serves to prove identity when identity is an issue, or when it is sought to show the guilt of defendant by circumstantial evidence and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory. Kelley v. State, 31 Tex. Cr. R. 211, 20 S. W. 365; Dawson v. State, 32 Tex. Cr. R. [535] 552, 25 S. W. 21, [40 Am. St. Rep. 791]; Mixon v. State [Tex. Cr. App.] 31 S. W. 408; Fielder v. State, 40 Tex. Cr. R. [184] 187, 49 S. W. 376; Camarillo v. State [Tex. Cr. App.] 68 S. W. 795; Bright v. State [Tex. Cr. App.] 74 S. W. 912; Perry v. State [Tex. Cr. App.] 78 S. W. 513; Penrice v. State [Tex. Cr. App.] 105 S. W. 797; Johnson v. State, 52 Tex. Cr. R. [201] 202, 107 S. W. 52; Snodgrass v. State [67 Tex. Cr. R. [451] 480] 148 S. W. 1095; Stephens v. State [69 Tex. Cr. R. 379], 154 S. W. 1001; Serrato v. State [74 Tex. Cr. R. 413], 171 S. W. [1133] 1142; Johns v. State [76 Tex. Cr. R. 303], 174 S. W. 610; Nowlin v. State [76 Tex. Cr. R. 480], 175 S. W. 1070.” In Meredith v. State, 115 Tex. Cr. R. 447, 455, 27 S.W.(2d) 222, 226, Judge Morrow, referring to McKinney v. State, 8 Tex. App. 626, 640, quotes therefrom an excerpt from Bishop’s Cr. Proc., as follows: “Mr. Bishop announces the correct doctrine to be, ‘that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet, whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by" showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible, and it is also admissible if it really tends thus (as in the facts of most cases it does not) to prove the act itself.’ 1 Bishop’s Cr. Proc., § 1067.” The above quotation, in the opinion of our presiding judge, correctly states the rule applicable in determining when, in cases of circumstantial evidence, testimony of extraneous offenses is admissible. It seems to the writer to have exact application in the case at bar. Evidence which shows this appellant to have repeatedly shot at and threatened other men whose- only offense was that they were duck hunting on his place, at other times reasonably near to the' time of the shooting here complained of, certainly “tends tó prove this one, not merely by showing the prisoner (appellant here) to be a bad man, but by showing the particular bad intent (to assault and shoot at duck hunters on his premises in the instant case) to have existed in his mind when he did the act complained of, and it is admissible if it really tends thus (* * *) to prove the act itself.” In Gardner v. State, 55 Tex. Cr. R. 400, 402, 117 S. W. 148, 149, Judge Davidson uses the following language: “Extraneous and contemporary crimes are sometimes admissible, when they may tend to develop the res gestae, show the intent system, or connect the defendant with the crime for which he is being tried. But this is never the case where there is positive evidence introduced to support the state in regard to the cause on trial.” We said in Haley v. State, 84 Tex. Cr. R. 629, 209 S. W. 675, 3 A. L. R. 779, and the same case on second appeal in 87 Tex. Cr. R. 519, 223 S. W. 202, that testimony showing that the accused had poisoned his wife at a time prior to the killing of the deceased, for whose murder he Was on trial, was admissible as showing motive and intent of Haley in the particular matter for which he was on trial.' Texas Jur. vol. 18, § 3, contains the following: “Evidence of the commission of similar offenses, although separate and isolated from the crime charged, is admissible for the purpose of showing guilty knowledge or intent, whenever the existence of such knowledge or intent is material and either disputed or doubtful. Indeed, the only mode of showing a present intent is often to be found in proof of a like intent previously entertained. Commission of other crimes may be shown under this rule only when the intent accompanying the act is equivocal, or where the intent otherwise becomes an issue- in the trial, as where it is claimed that the act in question was free from a criminal intent, or was the result of mistake, accident or inadvertence.” Many authorities are cited. The state’s purpose in the introduction of this testimony is not stated and can only be inferred as we read the record. It may, be that the state by reason of its testimony showing that no other person was at the place of the shooting save .appellant; the fresh tracks made since the rain out at the big gate near which were found the freshly shot shells; the going away from the house by appellant within a short time after nine rifle shots had been fired'so near said house as to cause all witnesses who heard same to swear to their proximity thereto; the finding of the rifle in the house; the existence of á telephone there; the gathering one by one of appellant’s children at his home from ⅜ distant town be-,' fore any charge had been laid, and before, even the first investigating party which' went to appellant’s premisés had gone away, or had any chance to report on what they found there; the res gestas declaration of deceased, may have been offering this testimony which we have been discussing as bearing on the question of malice vel non of appellant in firing at said party, or it may have been offered on the theory that this being a case of circumstantial evidence, involving-two defensive theories, viz., iden-f tity of the accused and lack of intent to kill,’ that testimony of threats toward the class’ of duck hunters which embraced deceased, and of previous shooting by appellant at duck hunters, two instances being so near in point of time as to have occurred the day' before this homicide, would be admissible as tending to show that appellant was the party who fired the shots. We do not know and can only surmise. We do not think the principle referred to-by us in Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471, cited and relied on by appellant, to be the same as that here involved. The intent, guilty knowledge, and malice of appellant were very material issues in this case. When this is true, under all the authorities extraneous offenses whose facts are pertinent to the issue of intent, malice, etc., become in many cases important to prove. We think this such a case. We do not think the Weatherred Case, supra, to fall within such group. There are other bills of exception which we have examined, but which we do not think present any reversible error. The judgment of reversal is set aside, the original opinion reversing the case is withdrawn, this opinion is substituted, and the judgment of the trial court is now affirmed.
On Motion for Rehearing. HAWKINS, Judge. Appellant in his motion for rehearing again urges that bills of exception Nos.-3 (p. 66, tr.), 4 (p. 73, tr.), 5 (p. 86, tr.),, 6 (p. 90, tr.), and 7 (p. 94, tr.), exhibit error which calls for a reversal of the judgment, and further calls .attention to the fact that bill of exception No; 7 was not discussed in the opinion of affirmance. The. record shows that appellant had’ rented land to Mr. Lundy who cultivated it in rice. It is shown by bill of exception No. 3 that L. G. Dickerson was permitted to testify over appellant’s objection that on November 16, 1928, the day before Emory Fisher was killed, witness and Allen Stout were hunting ducks in the Lundy rice field; that appellant fired at witness with a rifle from a distance of 67 steps, the bullet passing near witness’ head; that appellant was inside his pasture at the time; that appellant stood some four or five minutes and then fired at Mr. Stout, who had just killed two ducks. Said testimony was objected to on the ground that it consisted of matters which occurred before the killing of Emory Fisher, had no connection therewith, was testimony of extraneous matter not connected with the case on trial, and that because appellant may have shot at one man was no evidence that he had shot another. It is certified in the bill that it was argued by the state in opening and closing the case that the testimony so objected to showed that appellant was thg man who shot Emory Fisher, and that if appellant had so shot at witness it showed what kind of a man appellant was. 'Bill No. 4 shows that Dickerson also testified over objection that in 1927 he was with another party in a blind shooting ducks in the same vicinity, and that on said occasion appellant came near to where they were and called to them ;- that they left their guns in the blind and walked out to where appellant was sitting on his horse; that he cursed them and said, “Don’t you know I don’t allow any hunting in here?” that witness told him- that the fences were down and they thought it was “wide open”; that appellant then said, “You all get your decóys and get across the bayou. I ought not to have come down here;1 I ought to have killed you from the. hill: side, but I will given you a chance”; that: witness and his companion -started to get their decoys and appellant rode off four or five hundred yards; that as witness picked up a decoy by the head appellant fired with a rifle and bursted the decoy in witness’ hand. This testimony was obj ected to for the same reasons' shown in bill- No.. 3, and-for the additional reason that the incident was “too-remote- in point .of-time.”; Bill No. 5 reflects that over appellant’s same objection Stout was permitted to testify to the same facts related by Dickerson, as shown in bill No. 3. Bill No. 6 shows that over appellant’s same objection the witness Ivey was permitted to testify that about two weeks prior to the killing of Fisher witness was hunting near appellant’s pasture, and appellant ordered him out, saying, “ * * * he had a good notion to shoot him (witness) and leave him right there.” Bill of exception No. 7 will be adverted to later. It must be remembered that in the present case appellant did not testify; there was no issue of accident or innocent intent. Therefore, the evidence of the other offenses referred to was not provable in rebuttal of a claimed accident or innocent intention. We gather from the record that it was the state’s contention that the case being one in which the state relied on circumstantial evidence, other offenses were provable upon the issue of identity and animus of appellant, and also to show system. It ought to be too well settled to require discussion that proof of the commission of offenses by accused other than the one for which he is on trial is not admissible, unless they fall under certain well-known exceptions. In Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471, 472, we said; “No principle is better understood than that proof of the connection of A., with á given crime cannot be made by proof of the fact that at a prior date he did a similar thing.” Upon the general principles involved, we quote from Missouri v. State, 109 Tex. Cr. R. 193, 4 S.W.(2d) 68: “Proof that appellant committed a like offense at another time is not legal evidence that he committed the' offense for which he was being tried, unless such other offense tended to prove intént, system, or identity, when these are issues. Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9. The fact that two or more crimes were committed in the same way does not show system. Long v. State, 39 Tex. Cr. R. [537] 546, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501. It has been many times held that proof of an independent crime is not admissible by sheer foi;ce of the .fact that it was committed on the same day or the same .night. Woodard v. State, (Tex. Cr. App.) 51 S. W. 1122; Nunn v. State, 60 Tex. Cr. R. 86, 131 S. W. 320; Branch’s P. C. p. 99. If.it had.been shown in .this case that the former burglaries had been committed by appellant and that in the instant case the crime was committed in such manner or under such facts as tended to show that the party who committed the last burglary was identical with the one who committed the first because of certain identifying facts common to both transactions., the above evidence would have been correctly admitted upon the issue of identity.” In Story v. State, 107 Tex. Cr. R. 266, 296 S. W. 296, 300, accused was on trial for robbery. The state proved over objection that there was found upon accused’s premises certain property which had been taken from other places than that involved in the robbery for which he was on trial, and at times widely separated from the robbery under investigation. The court held that such evidence ought not to have been admitted, and then said: “In the language of many authorities, it would seem unquestionably true that to prove against one on trial for the commission of a crime, either by circumstances or by direct testimony, that he had on different and separate occasions committed crimes similar, would be to convince the jury in the particular case that he is a criminal generally, but, unless the matter ■ pertaining to the extraneous crime be • a circumstance material in itself to the making out of the particular case, in which event it would be admissible regardless of whether it established an extraneous offense or not, such testimony should not be admitted.” See, also, Williams v. State, 24 Tex. Cr. R. 412, 6 S. W. 318; Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9; Lancaster v. State, 82 Tex. Cr. R. 473, 200 S. W. 167, 3 A. L. R. 1533; Nunn & Luster v. State, 60 Tex. Cr. R. 86, 131 S. W. 320. The courts have so frequently been called upon to state the exceptions to the general rule which excludes proof of other offenses that sometimes loose and unguarded expressions have crept into the opinions, and we are awaré of no more misleading statement than the one that “other offenses may be shown where the State relies . upon circumstantial evidence.” Of course, such statement of the exception is inaccurate and too general. If the broad statement was given application, then in every .case of circumstantial evidence the state, pould prove against the accused the commission of other similar offenses, although .they -were without logical connection. \yjth ,£he offense under investigation'. This would be obnoxious to justice and to every well-considered announcement front this court. The correct rule as to such exception is very accurately stated in Texas Jurisprudence, vol. 18, p. 65, as follows (italics ours) : “Proof of other offenses is admissible when it is sought to show defendant’s guilt by circumstantial evidence and such proof connects or tends to connect the defendant with the offense for which he is on trial. In other words, evidence tending to make out the guilt of the accused by a chain of circumstances is not rendered inadmissible merely because one or more links of that chain tend to prove him guilty of other crimes.” Bateman v. State, 81 Tex. Cr. R. 73, 193 S. W. 666, 3 A. L. R. 1535-, illustrates the true exception when proof of other offenses may be admitted upon the issue of identity. Bateman was on trial for robbery which was alleged to have occurred at a barn where three parties participated in robbing some negroes. The negroes there robbed could not identify any of the robbers. The three robbers who were at the barn went from there in a car driven by a jitney driver to where other negroes were assembled in some sort of celebration, and there began a series' of acts, exhibiting arid shooting their pistols, and there robbed at least two parties of something like $7. The driver of the car identified Bateman as one of the parties who left his car and went to the barn. At the social function Bate-man was recognized as one of those engaged in the robbery there. In holding admissible evidence of the identity of Bate-man as one of the robbers at the negro entertainment, this court said:' “The objection urged to the introduction of this testimony was that it was developing another crime, which it is contended was illegitimate and the evidence inadmissible. We woüld be inclined to agree with this proposition if appellant had been clearly identified at the time as one of the parties to the transaction relied upon by the State for conviction, but as this was not the case we are of opinion, the court did not err in admitting the evidence of identification at the other times and places mentioned.” Proof of the identification of Bateman as one of the robbers at the negro entertainment was not admissible because' Rater: man had committed nnpther robbery, but because it was, a link in the chain of evidence which fixe.d hjs identity as one of the robbers at the barn. Another case illustrating the true limitation where the state relied on circumstantial evidence is Boyd & Standley v. United States, 142 U. S. 450, 12 S. Ct. 292, 295, 35 L. Ed. 1077. Boyd and Standley were upon trial for the murder of one Dansby. The evidence of the government was to the effect that on the night of April 6, 1890, Boyd and his companions killed Dansby while engaged in an effort to rob one Byrd. The evidence left the identity of the murderers in some doubt. Over objection of defendant, the government proved that Boyd and some of his companions on the evening of April 5, 1890, had robbed a man by the name,, of Rigsby, and that on March 15th they robbed Brinson and Mode, and that in the afternoon of March 17th they robbed Robert Allen, and on the night of March 20th they robbed one Taylor. Property taken from Rigsby at the time he was robbed was found upon the person of one of Boyd’s- companions who was present at the time -Dansby was killed. The other robberies proven apparently had no connection with the case on trial further than to show that Boyd and his companions were robbers generally. The Supreme Court of the United States held the testimony as to the robbery of Rigsby was properly admitted because finding the property taken from Rigsby tended to identify Boyd and his companions as the ones who had killed Dansby, but held proof of the other robberies inadmissible for any purpose. In passing upon the question, the court said regarding the other robberies: “Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that (hey were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death. Upon a careful scrutiny of the record we are constrained to hold that, in at least the particulars to which we have adverted, those rules were not observed at the trial below. However- depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged.” In Wyatt v. State, 55 Tex. Cr. R. 73, 114 S. W. 812, 813, Judge Ramsey agreed with the majority of the court that certain identifying testimony was admissible, but dissented upon the point that it was necessary to limit such testimony. In stating his views, he said: “I hold these truths to be self-evident: (1) That where it is sought to identify a defendant as the person guilty of a crime for which in any case He is on trial, that proof of extraneous crimes is never admissible unless it is of such character as furnishes evidence of his identity and connection with the offense then being tried; (2) that the converse of this proposition is equally true, and if such proof does establish his identity and connection with the offense being tried, same is always admissible; (3) tHat in such case the evidence of other offenses is not admissible, merely because there are other offenses, but as links in the chain of inculpatory and incriminatory facts which trace the movements of the defendant, locate him at the place of the crime for which he is being tried, and connect him therewith. * * * ” (Italics ours.) In Musgrave v. State, 28 Tex. App. 57, 11 S. W. 927, the defendant was on trial for theft of a bay mare belonging to one Brown. Upon the trial the state proved over objection that at the time appellant was arrested he was also found in possession of a gray horse which had been stolen from another party, not, however, at the time the Brown mare was taken. In passing upon the question raised by the objection this court, speaking through Judge Hurt, said: “Such evidence is received also for the purpose of completing the chain of circumstances relied upon to establish the guilt of the accused. This is a simple proposition when understood. If the theft of another horse constitutes a fact in the chain of facts (circumstances) zvhich connect the accused with the theft of the horse for which he is being tried, this theft is admissible in evidence, not because the fact introduced is theft of a horse, but because it is a crimina-tive fact. * * * Now, if the pony and mare had been taken at 'the same time, this fact was competent evidence; but, in the absence of such proof, we cannot possibly perceive what bearing the theft of the pony has upon this case. It certainly develops no criminative fact, nor does it explain a competent fact. It is not a relative fact constituting a link in a chain of facts tending to establish the guilt of the appellant; hence it could serve but- one purpose. which was unjustly to prejudice the case or the appellant in the estimation of his triers.” Upon the same point, see, also, Lancaster v. State, 82 Tex. Cr. R. 473, 200 S. W. 167, 3 A. L. R. 1533. The conduct of appellant towards Dickerson, Stout, and Ivey constituted no link in a chain of evidence such as is contemplated in the authorities. It simply furnished a predicate for the conclusion that appellant was a bad man generally, and because he did the things towards the named parties, he therefore did, or was likely to do, the thing which resulted in young Fisher’s death. Reverting now to the state’s other contention that proof of the other offenses hy appellant was admissible to show “system.” The use of this unqualified term as pointing out another exception to the general rule which excludes proof of extraneous crimes has been productive of much confusion. It has been held many times that the fact that two or more crimes were committed in the same way does not show system. Long v. State, 39 Tex. Cr. R. 537, 546, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501; Missouri v. State, 109 Tex. Cr. R. 193, 4 S.W.(2d) 68. The mere fact that two or more distinct crimes were committed in the same way, or even in pursuance of the same conspiracy, does not show system. Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869; Cone v. State, 86 Tex. Cr. R. 291, 216 S. W. 190; Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501. In the last case cited it appeared that it was the theory of the state that Smith and Capers entered into a conspiracy to commit the crime of arson as to different houses. Capers testified against Smith, and on the trial the court permitted testimony with reference to arson as to other houses than that charged. In writing upon this question, Judge Davidson said: “These transactions were independent of the one for which this conviction was obtained. The court seemed to believe, from his qualification of the bill, that, if there was a conspiracy to burn houses, this would permit evidence of all the other cases of arson testified by Capers, on the theory of system. Where evidence of an extraneous kind is admitted, it must be to show intent to develop the res gestae, identity of > the defendant, or show system.: That a parly may be systematically a thief, or destroy-. er of houses by burning, or in the partici-pancy or execution of a crime, does not necessarily come within the exceptions above mentioned. To prove system in order to identify a party, or to show intent, is one thing, but to prove systematic crime, or that an accused is a confirmed violator of the law, is a very different proposition. And extraneous crimes are not admissible, even under the exception to the rule, unless the testimony comes within one of the exceptions, and this to connect the defendant with the crime for which he is being tried.” In Mayes v. State, 118 Tex. Cr. R. 612, 42 S.W.(2d) 65, 66, the state’s evidence showed that appellant gave Mr. Deats a check for $150 in exchange for some horses. Payment of the check was refused. Over objection the state also showed that on the day before the Deats transaction appellant had given Mr. Slator a check for $545 which was also in exchange for some horses. The 'Slator check was also returned unpaid. The state took the position that inasmuch as the Slator transaction was similar in all respects to the Deats transaction, and occurred only the day before, that it was admissible to show system. This court disapproved such proposition, saying, “similarity of transactions, and proximity of tifne thereof, does not of itself constitute system,” and quoted with approval from Long v. State, 39 Tex. Cr. R. 537, 545, 47 S. W. 363, as follows: “Now, we hold that because an offense has been committed by a defendant in the same manner that the offense charged may have been committed does not constitute this separate offense a part of a system. The fact that two distinct crimes may have been committed in the same way does not, in our opinion, constitute a system, as meant by the authorities treating of this subject.” We quote further from the Long opinion as follows: “If these independent acts constituted a system, and if proof ,of such collateral offenses could be offered to connect a defendant with the offense charged, because such other offenses were likely perpetrated in the same way as the one for which he was being tried, then, in every case in which appellant was shown to have committed similar offenses, ■ proof of such offenses could be made in order to identify or connect him with the case for which he was on'••trial. To illustrate: Suppose A. is on' trial for the theft of a- horse, and the'proof should, show that it was taken in a particular manner, but there was no proof identifying or connecting A. with the theft of said horse; then, in order to connect him with such offense, and to show that he was the guilty party, if the contention of the state be correct, if he had been convicted for the theft of other horses committed in a similar manner, proof ,of such collateral crimes could be introduced in evidence, as testimony tending to show that he was guilty of the offense charged against him. This we do not understand to be the rule; but this was exactly what was done in this case, — that is, proof of independent offenses was introduced by the state as testimony tending to connect defendant with the main offense, for the purpose of corroborating the accomplice’s . evidence. * * * We hold that the court erred in admitting said evidence for any purpose.” Our court did hold in the Mayes Case, supra, that evidence of the Slator transaction was admissible to rebut appellant’s claim of good faith, and of his assertion that he had no intent to defraud at the time he gave the Deats check. There is no question of good faith or innocent intent in the instant case. Upon the question of similarity of offenses it would not be inappropriate at this point to call attention to one striking dissimilarity in the transaction, which resulted in Fisher’s death, and the ones related by Dickerson, Stout, and Ivey. There can be no doubt from the record that whoever killed Fisher was more than a half mile away, and concealed. In the other transactions proven over objection, there was ho effort on the part of appellant to conceal his identity. He came out boldly in the open and up to the parties he was dealing with. Upon original submission the present writer entertained the view that the evidence 1 under consideration was admissible upon the principle that proof 'of threats directed against a class was provable if deceased fell within the class embraced in such threat. That such principle has long been recognized and given application is clear from the cases cited on the point in the judgment of affirmance. After more mature thought, and further investigation of the record, the writer has reached the conclusion that the reasoning which led to his former view in regard to the matter was at fault. Equally as well recognized as the principle above referred to is another, viz., that evidence .of gem-eral threats made by an accused is not admissible when such threats are not shown to have been directed towards deceased, or to embrace him. Godwin v. State, 38 Tex. Cr. R. 466, 469, 43 S. W. 336, and other cases listed under section 2073, Branch’s Ann. Tex. P. C, at page 1167. It is also well settled that it is error to prove that accused made threats against others than deceased when such threats are distinct and independent and could only serve the purpose of showing that accused was a bad man generally. (See Branch, supra). Now the state’s proposition here being considered is that it having been shown that appellant had his land “posted” against hunting thereon, the evidence of' Dickerson, Stout, and Ivey as to the violent conduct of appellant towards them was admissible to show his malice and malignant disposition generally towards “duck hunters,” which included deceased. Suppose there had been no act of violence towards Dickerson and his companions in 1927, nor towards the same Dickerson and one Stout on the day before Fisher was killed, nor toward Ivey some two weeks .’before such killing, but the state had proposed to prove that in 1927 appellant had made a threat that if Dickerson and another party came on his (appellant’s) place duck hunting he was going to run them out, and told them he ought to have shot them from the hillside, and that he intended to shoot the decoy out of Dickerson’s hand when he started to leave; also that the state proposed to prove that on the day before Fisher was killed appellant was heard to say that if Ivey came on appellant’s place hunting he would have a “good notion to shoot” Ivey and leave him there, and that appellant intended to run Ivey off the place. Now in hone of this suppositional testimony is Fisher named, or referréd to. It relates to threats of violence towards named parties, on- three different occasions; one party, Dickerson, being referred to twice. Under our authorities, such proposed testimony would not have been admissible in a trial against appellant for killing Fisher, because it would not constitute a general threat of violence towards a class which might include Fisher, but would have been specific threats of violence towards individuals by name, although such individuals might be duck hunters, as also was Fisher. Appellant might for some reason object to the-hunting on his premises of Ivey, and Dickerson, or of any one accompanying the latter. If proof of threats of violence towards the named parties would not be admissible, on what reasoning would the specific acts of violence towards them be any more admissible? If the state could have shown that appellant used violence toward every hunter who came on his premises from 1927 up to the time of the killing it would have much nearer approximated an application of the principle of a general threat against a class. (We are not unmindful of the fact that appellant had leased a part of his premises to a hunting club at Houston, and we have no reference to hunting on the leased premises.) The state has picked out three isolated transactions that occurred over a year’s space of time, and is seeking to base thereon a deduction of appellant’s general attitude. Is there in the record proof of hunting by others than those mentioned? Evidence upon this point came into the record from witnesses both for the state and appellant, and was developed as a result of appellant’s attempt to show that there were people other than appellant who hunted with rifles in the vicinity of the killing. William Nelson, a state’s witness, and one of the boys who was with Fisher at the time of the killing, testified, as follows: “I never hunted in that (the east) part of the pasture. The only part I hunted in was just around those ponds in the rice fields, right around close to Mr. Lawrence’s house.” It will be remembered that the killing occurred on November 17th. The evidence of Dickerson and Stout complained of in bills of exceptions 3 and 5 was that appellant had shot at them on the evening of November 16th. Dickerson further testified: “I was down there before that date duck hunting, on the evening of the fifteenth, on the ninth and twelfth.” W. C. (Will) Lundy, a state’s witness, and the man who had rented land from appellant and in whose rice field Dickerson and Stout were hunting on November 16th, testified: “I have seen people around there, hunters, men that I did not know. * * * There had been men down there who wanted to use a rifle and I told them no. That was my orders in the field, not to shoot any rifles, because I told them not to bring them in * * * j Went out there in the field, too, some, and they had shot guns where they were shooting ducks. They had little places fixed up in the field, calling ducks, and they had shot guns.” John Shearer testified for appellant. He had frequently heard rifle shooting about appellant’s pasture, covering a period of twenty years. He said: “It was like .the fourth of July in the opening of the duck season. That has been continuous during the game season, up to the present time. * * * Those fellows were down there shooting in all directions and the bullets were whistling through the air. That went back from the time there was a duck season. There have been hunters in there continuously during the duck season.” Harry Polk, a witness for appellant, was a member of the hunting club that had 2,000 acres leased from appellant. . He testified that he did all his hunting and had for two years on the leased land, and had never hunted around appellant’s house,.but said: “There is a place up there southwest of Mr. Lawrence’s house where there is a lot of shooting. I do not know whether it is a rice field or not. There has not been any rice planted in there in the last two years. * * * I have heard a lot of shooting over there.” Jim Dutton, a witness for appellant, testified: “During the hunting seasons many hunters come down in those different pastures to hunt. I have been down in there for the past four or five years during every hunting season. I am in there every day. I hardly ever went out in the Lawrence place during the hunting season;” Ben Dutton, a witness for appellant, testified that he was frequently through the Lawrence place and that, in making those trips, “I travel across Mr. Lawrence’s pasture. * * * In going through there during the hunting seasons I never paid much attention to the hunters in the Lundy rice field. There has always been more or less shooting. I did not pay any attention to them. I took notice at times of hunting along in the vicinity of that roadway that I often traveled during the hunting seasons. I never saw any hunters in thére with high-powered rifles.” Eb Fisher, a witness for appellant, testified: “As I would be down in Mr..Lawrence’s neighborhood, and in his pasture as I went about the business of butchering in the hunting seasons of 1926, 1927 and 1928, I would frequently see hunters in the Lundy rice field.” The evidence of the foregoing witnesses makes it clear that hunting was general on the premises of appellant, and in the Lundy rice field during the time mentioned, and yet the 'state picks out three transactions, and on them relies to make out against appellant a general' violent and malignant disposition towards all hunters, which would include Fisher. The recital of the foregoing evidence seems to demonstrate the error in admitting proof of the three transactions testified about by Dickerson, Stout, and Ivey. Bill of exception No. 7, mentioned in the beginning of this opinion, is now reverted to. Said bill seems to have been overlooked in our original opinion. It reflects that appellant’s son, Fenton Lawrence, had testified for his father; no reference being made upon his direct examination to the matter elicited from him on cross-examination over appellant’s objection. The state drew from him on cross-examination the following testimony: “I have not seen him out there trying to run people off with his rifle, (referring to defendant) I have been out there when he had a rifle in his hand. I have not been out there when he was running the people that were in his pasture off with a rifle. I have been out there when he had 'a rifle in his hand. I was there when Mr. R. R. Bush was there. He (meaning defendant) had a rifle then. He bawled Mr. Bush out. He (meaning defendant) ordered him off the place. He had a rifle.” It is certified that Bush was not called as a witness. The evidence as above set out was objected to on the ground that it was irrelevant, was an isolated transaction, had no connection with the killing of Fisher, that the Bush transaction was not shown to have been unlawful, and that, the time of such incident was not shown. Under no rule of evidence, nor under an exception to any rule, does such testimony seem to be admissible. There is no showing even that Bush was hunting ducks or anything else on appellant’s premises, or that Bush even had a gun on the occasion. Appellant may have had perfectly good reasons to order Bush off the place, and may have been within his legal rights in what he did. The incident could have been appropriated by the jury but for the purpose of finding that appellant was generally a man of violent disposition, and, therefore, a man who w:ould likely shoot Fisher.. Under the present record it is difficult to dis-eover upon what theory the state urged the admission of such testimony. It is not even brought within the scope of the state’s position claiming admissibility of the testimony of Dickerson, Stout, and Ivey. The evidence admitted over objection furnished basis for the argument that the same party who had been guilty of violence towards Dickerson, Stout, and Ivey must have been the one who fired the shots which resulted in the death of Fisher. The language of Judge O’Brien in the celebrated case of People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 311, 62 L. R. A. 193, seems pertinent here: “We may attempt to deceive ourselves with words and phrases by arguing that it is admissible to prove intent, or identity, or the absence of mistake, or something else, in order to bring the case within some exception to the general rule; but what is in the mind all the time is the thought, so difficult to suppress, that the vicious and criminal agency that caused the death of Barnet also caused the death of Mrs. Adams.” Because of the very thing suggested by the learned judge just quoted, it has always been held by our court that proof of other offenses would be excluded unless they fell under some well-known exception. Proof of them here seems not justified unless some exception be extended or a new one established. To do either would appear unwise. From what has been said it follows that we have reached the conclusion that error is exhibited by bills of exception Nos. 3, 4, 5, 6, and 7, which necessarily resulted in injury to appellant, and that appellant’s motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court be reversed and the cause remanded, and it is so ordered.
MORROW, Presiding Judge (concurring). On the original submission of this caSe the views of the writer were not in accord with the disposition made of the appeal. No dissenting opinion was written for the reason that the majority of the court favored an affirmance of the judgment, and the probability of a motion for rehearing would afford the writer an opportunity to express his views if deemed desirable. Of such attitude of the writer his associates were informed. On the present presentation of the views of the members of the court, the opinion of the writer is in accord with the conclusion reached and stated by the writer of the opinion ordering a reversal of the judgment. Direct testimony identifying the accused as the offender is entirely lacking. Many of the relevant circumstances implicating him and upon which the conviction may have been founded are deemed to have been improperly received in evidence. On that subject the opinion of Judge HAWKINS, in which the writer concurs, is regarded as conclusive.
LATTIMORE, Judge (Dissenting). Our original opinion in this case held admissible proof that on various occasions, other than and prior to the shooting of Emory Fisher, appellant had shot at and threatened to shoot different persons against whom he had no personal ill will or malice, save that they were hunting on his place without his permission. The purpose of the admission of this testimony was threefold: First, to prove the identity of appellant as him who did the shooting; second, to show his motive, and that the shooting was purposeful; and to show system and custom on the part of appellant of shooting at and threatening people who hunted on his land without permission, the case being one dependent on circumstantial evidence. No effort was made by the state to prove malice or ill will of appellant directed toward Emory Fisher, who was but a boy and distantly related to appellant, but reliance was had on the well-established rule that malice against an individual is sufficiently established by proof of a reckless disregard of human life, or of malice entertained by the accused against a class or group to which the deceased belonged. See Banks v. State, 85 Tex. Cr. R. 165, 211 S. W. 217, 5 A. L. R. 600; Dyer v. State, 96 Tex. Cr. R. 301, 303, 257 S. W. 902; Bilyeu v. State, 103 Tex. Cr. R. 25, 27, 279 S. W. 845; Simmons v. State, 113 Tex. Cr. R. 53, 55, 19 S.W.(2d) 44. In Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336, followed by Fossett v. State, 41 Tex. Cr. R. 400, 55 S. W. 497; Earles v. State, 47 Tex. Cr. R. 559, 563, 85 S. W. 1; Green v. State, 90 Tex. Cr. R. 149, 233 S. W. 962, and others, we upheld the doctrine that threats directed at a class or group which comprehended the injured party were admissible on the question of the motive or malice of the accused. See, also, Miller v. State, 31 Tex. Cr. R. 609, 637, 21 S. W. 925, 37 Am. St. Rep. 836, and cases from other jurisdictions. In People v. Coughlin, 13 Utah, 58, 44 P. 94, 96, where the accused said of officers, “Let them come; I am ready for them,” and later was prosecuted for killing an officer who attempted to arrest him, proof of the threat was upheld. See Campbell v. State, 15 Tex. App. 506; Rafferty v. People, 72 Ill. 37; Palmer v. People, 138 Ill. 356, 28 N. E. 130, 32 Am. St. Rep. 146. In State v. Davis, 6 Idaho, 159, 53 P. 678, it was held, and I think correctly, that on trial of one accused of killing one of a class of persons, proof was admissible that the accused had threatened all members of that class, and that a short time before the alleged homicide he had attempted to kill other members of the same class. Threats to get even with every witness against him in a certain case held admissible on a trial for murder of one of said witnesses. Commonwealth v. Chase, 147 Mass. 597, 18 N. E. 565; Wheeler v. State, 158 Ind. 687, 63 N. E. 975. A statement that some of the Callón boys would die with their boots on held admissible on a charge of killing one of said boys. Laird v. Equitable Life Assurance Society, 98 Iowa, 495, 67 N. W. 385. Threats to kill policemen generally, held admissible where the charge was killing a policeman. State v. McNally, 87 Mo. 644, 649; Dixon v. State, 13 Fla. 636. Threats against sheep-men generally, held'admissible on a trial of one charged with killing a sheepman. State v. Davis, 6 Idaho, 159, 53 P. 678. “I am going over there and get me a nigger,” held admissible on trial of accused for killing a negro. Harris v. State, 109 Ga. 280, 34 S. E. 583. In Guiteau’s celebrated trial for killing President Garfield, a threat was held admissible to kill some of our public men. Many other citations might fee made, but we think the soundness of the rule will not be combated. Is it sound to object to such proof on the ground that it may or does amount to proof of extraneous offenses? Let us see. In McKinney v. State, 8 Tex. App. 626, 639, 640, we said: “Mr. Greenleaf says: ‘In some cases, however, evidence has been received of facts which happened before or after the principal transaction, which had no direct or apparent connection with it; and therefore their admission might seem at first view to constitute an exception to this rule (which excludes evidence of collateral facts). But those will be found to have been cases in which the knowledge or intent of the party was a material fact on which the evidence, apparently collateral and foreign to the main subject, had a direct bearing, and was therefore admitted.' 1 Grcenl. on Ev. § 53. Upon a trial for m'hrder, former grudges and evidence of former quarrels between the parties, and antecedent menaces, may always be shown to prove motive and the prisoner’s malice against deceased. 2 Ph. on Ev. 169; Roscoe’s Cr. Ev. 71; McCoy v. State, 25 Tex. 33 [78 Am. Dec. 520]; Carr v. State, 41 Tex. 543; Dill v. State, 1 Tex. App. 278. ‘There can: be no question that the acts, the declarations, and the conduct generally of á party charged with the commission of an offence, both before and after its alleged commission, are competent to be proved upon the trial to establish any fact essential to' be proved, if they tend legitimately to establish such fact, and they are competent to establish the existence of motive as any other fact. Motive is a minor or auxiliary fact, from- which, when established, in connection with other necessary facts, the main or primary fact of guilt may be inferred; and it may be established by circumstantial evidence, the same as any other- fact: The proper inquiry is, does it fairly tend to raise an inference in favor of the existence of the fact to be proved. If it does, it is admissible, whether such fact be innocent or criminal in its character.’ 3 Park. Cr. 681; Whart. on Hom., § 598; Hudson v. State, 61 Ala. 333; Pierson v. People, 18 Hun [N. Y.] 239; 1 Bishop’s Cr. Proc. § 1065. “Mr. Bishop announces the correct doctrine' to be, ‘that though the prisoner is not to be.'prejudiced in the eyes of the jury by the needless admission of testimony tending to' prove another crime, yet, whenever the evidence' which tends to prove the other crime'tends also to prove this one, not meret ly by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the'-act complained of, it is admissible, and it is also admissible if it really tends thus (as in the facts of most cases it does not) to prove the act itself.’ 1 Bishop’s Cr. P,roc., §.1067.” ' “Supporting and extending this doctrine, Mr.1'Branch in his