Lawrence v. State , 128 Tex. Crim. 416 ( 1933 )

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 Texas Grim. Rep., 165; 211 S.W. 217; Dyer v. State, 96 Tex.Crim. Rep.; Bilyeu v. State, 103 Texas Grim. Rep., 27; Simmons v. State, 113 Texas Grim. Rep., 55. In Godwin v. State, 38 Texas Grim. Rep., 466, followed by Fossett v. State, 41 Texas Grim. Rep., 400; Earles v. State, 47 Texas Grim. Rep., 563; Green v. State, 90 Texas Grim. Rep., 149, 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 Texas Grim. Rep., 637, and cases from other jurisdictions. In People v. Coughlin, 13 Utah 58, 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 Texas App., 506; Rafferty v. People, 72 Ill. 37; Palmer v. People, 138 Ill. 356. 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; Wheeler v. State,158 Ind. 687. A statement that some of the Callon boys would die with their boots on, held admissible on a charge of killing one of said boys. Laird v. Life Assurance Society, 98 Iowa 495. Threats to kill policemen generally, held admissible where the charge was killing a policeman. State v. McNally, 87 Mo., 649; Dixon v. State, 13 Fla. 636. Threats against sheepmen generally, held admissible on a trial of one charged with killing a sheepman. State v. Davis, 6 Idaho 159. "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. 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 be 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 Texas App., 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 Greenl. on Ev., sec. 53. Upon a trial for murder, 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. The State, 25 Tex. 33; Carr v. The State, 41 Tex. 543 [41 Tex. 543]; Dill v. The State, 1 Texas App., 278. ``There can be no question that the acts, the declarations, and the conduct generally of a party charged with the commission of an offense, 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., sec. 598; Hudson v. The State, 61 Ala. 333; Pierson v. The People, 18 Hun., 239; 1 Bishop's Cr. Proc., sec. 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 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., sec. 1067."

Supporting and extending this doctrine, Mr. Branch in his admirable Annotated P.C., sec. 166, says: "When an extraneous crime or other transaction * * * tends to show intent when intent is an issue, or tends to connect the defendant with the offense for which he is on trial when identity is an issue, proof of extraneous offenses is admissible." The author cites hundreds of cases. He also says in the same section: "Proof of other offenses is not admissible to show system, intent or identity, unless some of these matters are in issue," which is beyond doubt sound. Again in section 1882 of the same work, Mr. Branch says: "Proof of facts which show motive is admissible although it involves proof of an extraneous crime." Also he further says: "The mere fact that in proving motive for a homicide or an assault a separate crime may be proved, does not render proof of such motive inadmissible." Again in section 1883, upon numerous citations, the author says: "Remoteness of the act or acts proven for the purpose of showing motive, may go to the probative force of the testimony, but the fact that such testimony is remote is not of itself a reason for excluding it if there is a logical connection between it and the particular act under investigation." Again in section 1872, the same author says: "When a foul assassination has occurred and the circumstances attending and surrounding it are shrouded in mystery, the command of the law is, ``Turn on the light,'" citing Preston v. State, 8 Texas App., 33; also he says the mind seeks to explore every possible source from which any light, however, feeble, may be derived, citing Early v. State, 9 Texas App., 485, and other cases. He also says that "every fact and circumstance reasonably calculated to illuminate the transaction should be permitted to go to and be weighed by the jury," supporting which are cited many cases.

In the view of the writer, every observation just quoted or stated is true and has direct application to the case before us. Here a boy, innocent of wrongdoing, — except that he had just shot at a duck on the premises of this appellant without permission, — was shot through the body by a rifle and killed under circumstances that strongly support the inference that he who fired this shot, and other shots at the same time and place, intended it and them to either strike deceased or to pass so near to him as to evidence the feeling and bitter objection of the party shooting toward hunters on his place without permission.

At the risk of repetition and for the sake of connected reasoning, I restate the facts. Fisher and two other boys were crossing appellant's pasture in the early morning, Fisher alone having a gun. At the same time Mr. Charlton was hunting in a near-by rice field belonging to appellant, and in which field young Fisher was presently killed. Charlton was hunting without permission. He shot at a duck. The testimony is positive that pro and con shots fired in said rice field could be heard at appellant's house, where he was shown to have been that morning alone. About ten minutes after Charlton shot, Fisher left his two boy companions near the fence between appellant's pasture and said rice field, — stepped off a little way and shot at some ducks. Almost simultaneously with the firing of his gun, rifle shots began from a point near appellant's big gate, some hundreds of yards from his house, and Fisher's companions testified that they could hear the bullets singing through the air and see them knocking up water and mud near Fisher. Four rifle shots were fired. As one came by him Fisher ducked his head and called to his comrades and said "The old man liked to have gotten me that time." He came at once back to the other two, and the three got through the fence into said rice field and started walking abreast away from the direction of appellant's house. Fisher was in the middle. In a few moments from another point, still in the general direction of appellant's house but apparently nearer where the boys were, five more rifle shots were fired. The first bullet entered Fisher's back, passed through his body, came out his breast, and he fell dead.

No witness saw who shot or could testify to personal malice of appellant. Appellant pleaded not guilty, but did not testify. He introduced a number of witnesses who swore that during the hunting season much hunting was done in that vicinity by persons using high powered rifles, many of these witnesses saying they heard the bullets singing through the air. The only purpose of such testimony apparently could be to support or suggest to the jury the theory of an accidental shooting of Fisher by some unknown hunter.

Appellant's plea of not guilty put upon the State the burden of proving beyond a reasonable doubt that he did the shooting, and that he was actuated by malice toward Fisher, or toward some class or group to which Fisher belonged, or that in such shooting he manifested such reckless disregard for human life as, under the circumstances, showed a heart regardless of social duty and fatally bent on mischief. Having no direct testimony to establish these issues, the State was compelled to resort to circumstantial evidence.

A number of witnesses swore that each volley of rifle shots, above referred to, came from the general direction of appellant's house where it was shown he was alone that morning. Several testified that the first volley came from the direction of appellant's big gate, and later near this gate were found several empty rifle cartridges and tracks of a human being which were said to look like tracks made by appellant at another place that morning. It was demonstrated that the shots in the first volley were not at the companions of Fisher, who were some little distance from him, — but were at him, and at him only after he shot at the ducks. Both of the other boys swore they saw the water and mud knocked up near Fisher by the bullets. Whoever fired the next volley apparently knew who had fired at the ducks, although Fisher had rejoined his two comrades, and all were walking off abreast, — Fisher only was shot.

While motive is not absolutely indispensable of proof in murder cases, still in every case of the thousands before the courts it appears that this is the first thing thought of and sought for, and being proven, is accorded much weight. Sane minds do not kill without motive except by accident. It is perfectly natural for the question to arise in the minds of jurors why should Emory Fisher be shot at first four times, and later five more shots be fired at him and his comrades.

The State undertook to shed light both on the identity of the slayer and his motive, by asserting and proving that appellant so strongly objected to hunting on his place without his permission as that he had threatened to shoot other duck hunters, and had shot at them when found on his place so engaged.

Is such proof relevant, and does it fairly lead the dispassionate mind toward a proper solution of the issues of identity and motive? There seems to the writer but one answer. One stray shot might go near a given man and be by accident, but a volley of four passing near the same man, would seem to support intent, and the second volley soon afterward at the same man, would much more strongly support the suggestion of intent and purpose. As reasoned by Mr. Wigmore in section 302 of volume 1 of his work on Evidence, — one unusual or abnormal element might be present in one instance, but the oftener similar instances occur with like results, the less likelihood of their being the result of innocent chance, as, for instance, if A and B be hunting, and a bullet from B's gun whistles dangerously near A's head, this might be accepted as the result of bad aim or accidental discharge of B's gun, but if the same thing occur again the next time they are out, and on a third occasion A gets a bullet from B's gun in his body, the strong inference or probability, if not the certainty, is that B shot at A in each instance, and of course the more frequent the occurrence of the same supposedly abnormal or unusual thing followed by like or similar results, the less grows the likelihood of accident or inadvertence. The force of such reasoning holds good whether the subject of proof be motive of the accused or his identity. If A shot at a strange man whose only offense is that he is a trespasser on A's premises, and the next day and the next week he shoots again and again, and it be shown that he threatened to shoot others for the same offense, and then B be shot while trespassing on A's land, and the inquiry be, — who did the shooting, it would appear perfectly natural and reasonably true that proof of the prior acts and conduct of A afford a logical inference of his identity as the assailant, and such proof becomes peculiarly cogent and convincing when it is also in evidence that all the prior shootings at such trespassers, as well as at B, were done with a rifle, a weapon shown to be usually carried by A when out over his premises, and this is especially true when other facts show the shooting at B was done from a point near the residence of A, and where he was shown to be at the time, and that there is no other residence near.

Do the facts in the instant case support attempted application of this reasoning? Almost exactly. The boy shot was a trespasser on appellant's premises. The identity of his slayer as well as the motive in the slaying were issues in the case. On the day before Fisher was shot it was shown that appellant with a rifle shot at Mr. Dickerson, whose only offense was that he at the time was also a trespasser hunting ducks in the same field where Fisher was killed. On the same day Mr. Stout was shot at by this appellant using a rifle while hunting ducks in the same field without appellant's permission. Mr. Ivey, — whose only offense was that he was hunting ducks in said rice field without appellant's permission a week before Fisher was killer, — was squatting behind a shock of rice calling up some duck. Appellant holloed at him and his companion Fletcher and told them to get out. They walked back to where appellant was. Appellant had a rifle. When they were twenty-five or thirty yards from him he asked them what they were doing in there. They replied that they were duck hunting. He asked how came them in there, and they told him they had permission from Mr. Lundy. Appellant replied that this was his land, that it was not Lundy's land, and for them to tell that old s — of a b — that it was his land, and that Lundy did not have anything to do with it. They told him they thought they were doing right by getting Lundy's permission, and did not know the land was his. Appellant said he had them right where he wanted them; that he had a good mind to kill them and leave them lying there. He had the rifle pointed toward them. They got out. On a prior occasion Dickerson and a friend were duck hunting on appellant's land, and appellant came up, having his rifle in his hand, cursed them and ordered them to take their decoys and get across that bayou. Appellant said "I ought not to have come down here; I ought to have killed you from the hill side, but I will give you a chance." As witness and his companion were gathering up their decoys appellant rode some four or five hundred yards from them, and then turned and fired his rifle in their direction and burst a decoy in witness' hand. Witness said they took to the cane. Defense witness Henry testified without objection, on cross-examination by the State, that he had heard people talking about appellant shooting at persons when they got in his pasture; he had heard them say that appellant shot at them.

Certainly witnesses might describe tracks made by appellant on few or many cases prior to the one involved in a particular case, in order to enable the jury to identify the person who was claimed to have made similar tracks observed at the scene of the instant offense. Beyond question witnesses might tell of seeing the accused write on many former occasions when the object be to show him the author of a written instrument in a case on trial. Without doubt threats made by an accused on a former occasion directed at the injured party, or at some group or class which included such injured party, would be held admissible. Authorities are numerous to the effect that if a number of prior similar crimes had been committed in a peculiar and distinctive manner, or with any unusual weapon, the fact that the accused is known or observed to have committed a crime having the same peculiar and distinctive marks, or shown reasonably to have been committed with a similar peculiar weapon, such fact would be usable as evidence to identify him on trial as the guilty party in the other instances. If A be charged with sending a threatening letter through the mail to B who was actively in opposition to A in some matter, witnesses might express their opinions that the letter in question is in A's handwriting, and clearly proof would be authorized that parties had seen A mail letters to other persons in which were words spelled similarly misspelled as were found in the alleged threatening letter. It would seem plain that if a group of men had given offense to B, and he meets some of the group and threatens them collectively, and later the house of one member of the group is bombed by some one unknown and the owner killed, proof might be made that persons had theretofore seen B placing similar bombs under the homes of others of the group, the object being to identify B on his trial for murder.

The real question here involved is that of relevance. Under all the authorities if proof of the extraneous matter or transaction is relevant to the issue either of motive and intent or identity, in the case before the court, — the criminality of such other matter or transaction passes out entirely. No authority is known to the writer holding otherwise, — certainly no Texas case so holding can be found.

There is no issue between the writer and the other members of this court over the admissibility of testimony as to the extraneous matters unless they are relevant upon either the issue of intent or motive, or the issue of identity of this appellant. In Weatherred v. State, 100 Tex.Crim. Rep., quoted from in the majority opinion, there was no question of the admissibility of testimony of other transactions. The only issue was the lack of sufficient testimony to show the guilt of the accused, for which lack the case was reversed.

Reviewing further authorities cited in the majority opinion, the case of Missouri v. State, 109 Tex.Crim. Rep., also quoted from in said majority opinion, is exact and full authority for my contention here. In that case we said: "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 intent, system, or identity when these are issues."

Again we said in the Missouri opinion, supra: "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 factscommon to both transactions, the above evidence would have been correctly admitted upon the issue of identity."

The above statement was eminently correct when the only issue was identity, as in said burglary case, and would fit here exactly on the issue of identity, but since the case at bar is a murder case, the statement above quoted of the law should be extended to hold admissible extraneous matters, with common identifying facts when the issue is the motive or intent of the accused. There is not a word in said opinion inimical to my views in this case and herein expressed.

Story v. State, 107 Tex.Crim. Rep., is also referred to and quoted from in the majority opinion. I wrote the quoted part of said opinion on rehearing. The entire opinion shows that Story was charged with robbery of a bank on June 9, 1925, and testimony was introduced on his trial for this offense of a search of his premises in August following, and that certain articles which had been taken from another bank in Sanger, Texas, in March, 1925, were found on appellant's premises, and we were discussing the error of the admission of testimony of the finding of such other property in appellant's possession. In our original opinion in that case we correctly held that proof of such possession "Does not show intent, system, identity or res gestae," and we reversed the case because we held this testimony was inadmissible, and on rehearing we reaffirmed the holding originally and wrote that part of the opinion quoted in the majority opinion herein. We were not discussing or intending to discuss testimony of extraneous offenses or transactions whose logical effect was to show intent, motive, system or identity. The rule holding such testimony admissible if it tends to establish any one of said issues, is too well settled in this State and too sound in reason to be attacked or unsettled by any expression found in any opinion written by any member of this court, and this is especially true when the entire context in any given opinion shows that there was no intent to attack the rule.

Texas Jurisprudence, Vol. 18, p. 65, is quoted in the majority opinion. Certainly this court has never held that simply because a case was on circumstantial evidence, extraneous transactions or offenses not tending to establish intent, system or identity could be introduced.

Bateman v. State, 81 Tex.Crim. Rep., is referred to in the majority opinion as illustrative of the true rule. In said opinion Judge Davidson says: "Where the identity of the party is not definite as connected with the offense on trial, extraneous offenses may be introduced to connect and identify appellant with the case on trial."

The testimony in said case as to an extraneous transaction had much less in it tending to identify the accused as the perpetrator of the crime charged than appears in the case before us, but the judgment in said case was affirmed. For us to say that we held the evidence of the extraneous offense "a link in a chain of circumstantial evidence" would appear sound, — for every circumstance of evidential character admitted in support of any phase of the case would to some extent be a link in the chain of evidence.

I am unable to see anything in the quotation from Boyd and Standley v. United States, quoted from in the majority opinion, — that illuminates any point in the case at bar. No issue of intent or identity was there involved, and none such are discussed. Certainly I am not basing any contention here that the testimony showing plainly that this appellant had such rooted animosity toward all persons found hunting on his place as to lead him in every instance proven to either shoot at or threaten to shoot such hunters, should be held admissible on the idea that it proved him a killer in general. Nothing is further from my position, and what appears and is said in the Boyd-Standley case, supra, seems to be wholly aside from the issue in this case.

This appellant was not a killer generally. His animosity was not toward all men but only toward those who without his permission hunted on his place. No testimony was offered that he shot at people generally, but the testimony was confined to the support of the proposition contended for, namely, that Emory Fisher was shot at by some one who had no personal animosity against him, but whose feeling was engendered by Fisher's acts, in hunting ducks on appellant's premises without permission, and that the State in its effort to find out such slayer had the right under all the authorities to show if it could other shootings by this appellant at other duck hunters on his land, also other threats directed at other duck hunters hunting on his place without permission. To me the plain and legitimate purpose of such testimony was to supplement the testimony already pointing to appellant, and to show it more likely that this man who had stepped aside in this particular regard, upon every occasion theretofore afforded him within the knowledge of the State, had fired the volley at Fisher that killed him, — for no other reason save that he was a duck hunter without permission on appellant's premises, and that he was not killed by some accidental shot from the user of a high powered rifle in the hands of some other person somewhere within range; also that in so killing Fisher appellant was actuated by sufficient evil intent to shoot at and near him nine times in close succession with a rifle, and thus justify the conclusion that the shooting was upon malice.

In Wyatt v. State, 55 Tex.Crim. Rep., also referred to in the majority opinion, it is expressly held, both in the main opinion and the dissent, that evidence which goes to show intent or identity of the accused, even though it proves other and different crimes, is always admissible. I join with Judge Ramsey in his statement in his dissent that evidence of other offenses is not admissible merely because there are other offenses. It was said in our original opinion in this case, and is here repeated, that unless proof of these extraneous acts and transactions of this appellant point to him and make probable his identity as the one who shot Fisher, or illuminate his motive in the shooting, the evidence should not have been admitted.

Therein lies the difference between the case at bar and that of Musgrave v. State, 28 Texas App., 57, and Lancaster v. State, 82 Texas App., 473, and many others cited by Mr. Branch in section 166 of his Annotated P.C., wherein he lays down the well settled rule above quoted, viz: that proof of extraneous crimes which do not go to show intent, identity or system, or is not part of the res gestae, — is not admissible.

The thing in the majority opinion with which the writer is totally at variance is the assertion that the conduct of appellant toward Dickerson, Stout, Ivey et al., constitutes no link in a chain of evidence such as is contemplated by the authorities, and that it simply furnishes a predicate for the conclusion that appellant is a bad man generally. To me this statement is astounding.

Not an authority on facts at all similar is or can be set out or discussed as furnishing basis for such statement. It is without foundation in law, reason or facts.

There is nothing in the State's case here tending to show that this appellant was a bad man generally, or that he assaulted, shot at or threatened people in general just because he was a bad man, or just because he could, or just because they were people. There is not a suggestion in this record that appellant assaulted, shot at or threatened anybody except those who, — like Fisher, — were hunting without permission on his land. The proof shows that he had leased part of his place as a hunting preserve. No one claimed that he had ever assaulted, shot at or threatened members of this club who hunted thereon, though on his land. No witness testified or claimed that appellant shot at or assaulted people in his pasture who were not hunting. No one claimed that he quarreled with, fought or assaulted people on roads or in town, or under any other situation save when hunting on his place without permission. This being true, and it also being true that as far as the State could find out or show he always shot at, threatened or drove out with his rifle every man he ever saw hunting on his place without permission, it would be logical, reasonable and in consonance with every authority known to the writer, that in an occurrence such as is here where a boy was duck hunting without permission on appellant's land be fired upon from the direction of appellant's house nine times with a rifle, and killed by one of the shots, and the issue plainly be made as to who killed him and why, — that the State should be allowed to prove the attitude and identity of the slayer by the acts and words of this appellant toward others similarly situated and acting as was deceased when shot.

Multiplication of citations amounts to nothing unless they be pertinent. It is correct to say, — as said in the majority opinion, — that simply because one crime is committed in the same way as another, this does not show system, but the cited cases of Long v. State, 39 Tex.Crim. Rep.; Smith v. State,52 Tex. Crim. 80, and Missouri v. State, 109 Tex.Crim. Rep., do not justify any inference that testimony should not have been received in said cases, which showed the offenses to have been committed in the same way, — if the State had gone further, and in order to prove identity, had proved in the Long case that a peculiar tool had been used in breaking into the wheat bins in the aliunde transactions, whose impress was found upon the building burglarized, — in the case on trial, — and if the State had further shown that the wheel tracks of the wagons used in hauling the wheat in the extraneous transactions, had identical peculiarities with those found in the road made in the case on trial, and that partially consumed cigarettes of the same brand had been found at the scene of the other burglaries as were found at the scene of the case on trial; and that one of the men engaged in the extraneous burglaries walked with a limp, as did one of those engaged in the instant burglary. In other words, what we said in the Long case was true when applied to the facts of the Long case, but was never intended to reach out and hold improper other evidence applicable in other cases upon the issues involved in such other cases. What we have just said has application to the Smith case, supra. An accomplice was allowed to testify that he and Smith had agreed to burn other houses than the one involved in the case on trial, and that in pursuance of said agreement other houses had been burned, but there was not a single identifying circumstance or perculiarity shown in any of the other transactions such as would make it admissible to show identity or motive, which fact entirely differentiates it from the case before us. So, also, as to the Missouri case, supra.

Likewise it is true that the mere fact that two or more crimes were committed in the same way, or in pursuance of the same conspiracy, as said in the majority opinion, does not show system, — but this affords no sort of reason for saying that it would not be provable against A, charged with killing a Greek, — when the purpose of the testimony be to identify A as the killer, or to show his malice in so doing, in a case of circumstantial evidence, — that A had agreed with one or more other people to kill all Greeks, and that A had threatened and assaulted and shot at every Greek with whom he came in contact, and had used the same kind of weapon with which the killing was done in the instant case.

Mayes v. State, 118 Tex.Crim. Rep., is also cited in the majority opinion, and a quotation therefrom appears. There is no similarity in that case and this. Mayes bought horses and gave a check on a bank in payment, in which bank he had no money. On his trial for this offense the State was allowed to prove that the day before this particular transaction Mayes bought other horses, giving for them a check on the same bank. His defense was that he gave the check in question in good faith and upon the promise of the holders of said checks to hold them until he could get home where he expected to have said checks cared for. In disposing of the alleged error in admitting proof of the giving of the second check we quoted from the Long case, supra, a statement absolutely sound as applied to the facts in the Long case, but absolutely without application in a case on facts like the one here. To even a casual reasoner it must be evident that the Mayes case is wholly different on facts, and necessarily on legal principles governing, from the one at bar. There was no question of identity in that case. It was not a case of circumstantial evidence, and the only claim of the State regarding the admissibility of testimony as to the second check was that it showed system. After demonstrating the error of this claim of the State, we affirmed the case, holding that evidence of the second transaction was admissible to rebut appellant's claim of good faith in the giving of said check, and we further said: "When the purpose of the State is to rebut some claim of good faith, or lack of evil intent in the particular transaction involved, the State may prove appellant's guilty connection with similar transactions contemporaneously or nearly so with the one involved. When the question of the identity of the accused as the guilty party is combated and in doubt, the solution of such question may be aided by proof, in proper cases, or the identity of the accused as engaged in similar transactions at or about the time inquired about."

The writer of the majority opinion in this case undertakes to say that there is one feature of the extraneous transactions proven by the State, and the shooting of Fisher, — which is dissimilar. I have not found any case of the hundreds in our books where evidence of extraneous offenses and transactions is held admissible as proving intent, identity or system, — in which this court held that the evidence should have been rejected because there was one or more features of dissimilarity. It may be soundly said that if such rule should now be made or attempted, it would result in the rejection of all such testimony, for no two transactions could be found exhibiting exactly identical features throughout. The features of similarity which were material were the weapon used, the location, — as on the premises of appellant, — and the fact that Fisher was shot solely because he was hunting ducks on appellant's land without permission, all these features appearing in the proven extraneous offenses. That these features differentiated, individualized and set apart all these transactions as being in the same class, and all the parties assaulted, threatened and shot at as being in the same class, appears to the writer beyond question. Fisher was on appellant's land with his companions crossing a pasture. They were not fired on until Fisher shot at a duck, thus identifying his character and purpose in the mind of the man who shot at him from a distance of some eight hundred to a thousand yards, and who in all human probability was attracted from his house to his big gate by the shot fired by Charlton some ten minutes before the instant shooting, — but who at that distance could not know that Fisher was hunting ducks until he fired at them, which shot was followed immediately by rifle shots from about said big gate.

It is stated by the writer of the majority opinion that he originally agreed to an affirmance of this case upon a belief that the principle of the admissibility of threats against a class, — which included the deceased, — had application; but he has now reached a different conclusion. I am sorry. The original opinion was written after much reflection and investigation and a careful study of the facts. Respect for the views of my associates has caused me to look carefully into the law, and more closely into the facts. I have set out above some discussion of the legal questions, and they seem so well settled when there are, as in this case, issues of identity and motive and intent, that there seems scant room for difference as to the law. As to the facts, I submit my analysis of same and of the application thereto of the principles of the law asserted, with entire confidence in the soundness of both.

May I add that if threats, or one threat, — had been made by this appellant directed toward deceased personally, its admissibility would not be disputed. If appellant had assaulted or shot at deceased one time before the instant shooting, this would be provable without question. The soundness of the rule that threats, directed at a class which included the deceased, are provable upon his trial for killing one in that class, to show identity or motive, — seems too well established to be even argued against. I confess that my mind refuses to grasp a difference in principle between proof of repeated assaults upon others of a class, which included deceased, and that of repeated threats against persons in such class, — and this is especially true when clearly the sole reason for the assaults upon members in such class was the fact of their being in same.

I can not make clearer than I have that the State offered no testimony of threats generally on the part of appellant, and that the State had no purpose to show appellant a bad man generally. Every threat, every assault, every shot at any person, proven by the State, — was one at persons who were hunting on appellant's premises without permission, and at no others. That this same thing of hunting on this man's place without his permission caused this appellant to send this boy to his grave by a rifle shot, — can not be doubted under this record for a moment. To hold otherwise challenges credulity to the breaking point. I can not agree to this reversal and believe that the testimony was admissible, and respectfully record my dissent.