
    PEARCE v. STATE.
    (No. 10339.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.)
    1. Jury <&wkey;>l3l (6) — In homicide ease, refusal to permit examination of veniremen as to membership in Ku KIux Klan held error.
    In prosecution for murder, refusal to permit prospective jurors to be examined as to their membership in the Ku Klux KlanAeZd error.
    2. Criminal law <@=>419, 420(10) — In homicide case, testimony that deceased told witness that defendant had threatened him held inadmissible hearsay.
    In prosecution for murder of striker by ranger, testimony that deceased had told witness that defendant had threatened to kill him held inadmissible hearsay:
    
      3. Criminal law <&wkey;3.69 (3)— Evidence that ranger accused of killing striker had previously abused another striker held admissible.
    In prosecution of ranger for murder of striker, evidence that defendant had previously cursed and abused another striker held admissible. ■' '
    4. Witnesses ¡&wkey;370(l) — In prosecution of ranger for murder of striker, exclusion of evidence of feeling of witness toward rangers held error. .'
    In prosecution of ranger for murder of striker, refusal' to permit' defendant to .'show-feeling of witness toward rangers’ held error.
    5. Homicide <&wkey;l9l — In prosecution f.or killing striker, exclusion of evidence of conduct of and assaults by strikers held error.’,
    In prosecution of ranger for murder, of striker, refusal to admit evidence of prior conduct and assaults by strikers, known to defend.ant before the killing, held error.'
    6. Criminal law <&wkey;364(5) — Statement of ranger and his condition after killing striker held admissible as res gestse.
    In prosecution of ranger for murder of striker, evidence that defendant, after killing, was highly emotional, nervous, and, with tears in his eyes, said deceased had called him a name and was trying to hit him with a rock held part of res gestas.
    Commissioners’ Decision.
    Appeal from District Court, Hopkins County ; J. M. Melson, Judge.
    L. W. Pearce was convicted" of manslaughter, and he appeals.
    Reversed.
    Butler, Price & Maynor, of Tyler, J. H. Beavers, of Winnsboro, and Crosby & Estes, of Greenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, ,and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court’ of Hopkins county for the offense of manslaughter, and his punishment assessed at five years in the penitentiary. ,

The appellant was indicted in the district court of Smith county, being charged with ‘the offense of murdering one Clayton Hudson about the 17th day of October, 1922. The venue was changed to Wood county, and from Wood county to Hopkins county. The record discloses that the deceased, prior to the homicide, was an employee of the railroad company, and, together with many other employees,‘had gone on a strike in the city of Tyler, and had formed a picket around the property of the railroad company with a view of preventing said company from employing laborers to take the places vacated by the strikers. The appellant was a ranger who, in company with other rangers and officers, was sent there for the purpose of preventing the strikers from interfering with the laborers sought-to be used in replacing the positions left by the strikers, and to pre* vent said strikers from damaging the property of said railroad company.

It was the contention of the state that the appellant, without cause or provocation, shot and killed the deceased. The appellant defended upon the ground that he had been informed of the seriousness of conditions at Tyler, caused by the strike, prior to reaching that place and thereafter; that he had been informed that the strikers had killed one party .whom,the railroad company had sent to do some work at Tyler, and had severely beaten several more; that he had been warned of the danger of said strikers to the officers attempting to guard said premises and the employees working for the company; that he knew the deceased, and knew that he was a striker and one of the pickets around the property of the railroad company, working in connection with the strikers at said time and place; that he had also been informed that the strikers had armed themselves, and he had seen a pistol taken from one of said strikers near the scene of the homicide; that just immediately prior to the homicide the deceased had cursed and abused the rangers, and that he, appellant, discovered the deceased armed with a rock and made him throw it down; and that as he, appellant, turned to walk away he heard'the deceased say, “I will kill the son of a bitch now,” and when he turned around the deceased was rising in a threatening attitude, from which the appellant believed that the deceased was then preparing’to take his life or do him serious bodily injury, and, in his own self-defense, he shot and killed the deceased.

The fact that the transcript contains 437 pages and embraces 99 bills of exception renders it impractical for us to attempt to discuss separately the many issues raised herein. In bill of exception No. 1 complaint is made to the refusal of the court to permit appellant to ask the veniremen .if they belonged to the Knights of the Ku Klux Klan. The bill discloses that the appellant had been informed that said Klan was aiding and in sympathy' with the strike, out of which the homicide grew, and had discussed his case in the lodge room of its members. It further appears from the bill that, when said question was propounded to the veniremen as to their membership therein, the court instructed them that they did not, have to answer said question unless they wanted to; thereupon the venireman Sheppard refused to answer said question, and the court declined to require him or any venireman to answer same. This ruling was clearly erroneous, and the appellant was entitled to this information in order to exercise properly his peremptory challenges. This court has several times held that it was error to refuse to permit the appellant tó interrogate the veniremen with reference to this matter. Belcher v. State, 96 Tex. Cr. R. 382, 257 S. W. 1097; Welk v. State, 96 Tex. Cr. R. 373, 257 S. W. 1098; Belcher v. State, 96 Tex. Cr. R. 561, 258 S. W. 815.

Bills of exception 3 and 4 complain of the action of the court in permitting the state, while attempting to develop its case in chief, to prove by the witness Allen that the deceased told him, in the absence of the appellant, on the day preceding the homicide, that the appellant had told him, deceased, that he was going to kill him if he didn’t “stay away from down there,” evidently referring to the shops and property of the railroad company. Appellant’s counsel contend that this testimony was hearsay of the purest and simplest kind. We know of no decision or rule authorizing the admission of this testimony as presented in this bill, and the admission of same was clearly erroneous. Howard v. State, 76 Tex. Cr. R. 300, 174 S. W. 615; Mercado v. State, 96 Tex. Cr. R. 450, 258 S. W. 180; Jamail v. State, 99 Tex. Cr. R. 127, 268 S. W. 473; Cox v. State, 103 Tex. Cr. R. 67, 279 S. W. 838.

In bills Nos. 7, 9, 10, and 11 complaint is made to the action of the court in permitting the state to introduce evidence to the effect that, on the day preceding the homicide, the appellant cursed, abused, threatened, and assaulted one Harry Young, a striker, for trespassing upon the property of the railroad company. Appellant’s counsel insist that this evidence was foreign to any issue involved in the offense for which he was on trial, and was attempting to prove a distinct and extraneous crime, and was prejudicial to the rights of the appellant. We are of the opinion that, as presented, there is no error shown in the admission of this testimony.

Bill of exception No. 8, complaining of the refusal of the court to permit the appellant, on cross-examination, to show the feeling of the witness Young toward the rangers and guards, protecting the railroad company’s property and employees, shows error. It is always permissible for the appellant to show the interest, prejudice, and animus of a state’s witness, when the testimony of such witness has been unfavorable to him. Branch’s Ann. P. C. § 163, citing Mason v. State, 7 Tex. App. 623; Edwards v. State, 75 Tex. Cr. R. 647, 172 S. W. 233. Also, see Cryer v. State, 101 Tex. Cr. R. 637, 276 S. W. 925.

There are many bills of exception complaining of the refusal of the court to permit the appellant to show the conduct and assaults of other strikers, prior to the homicide, in the attempt to prevent the railroad company from employing labor to carry on the work and fill positions left by the strikers. This conduct, involving said assaults and threats of the strikers, was shown to be known or heard of by the appellant at the time of the homicide, and it was an undis>-puted fact that the deceased was a striker, and was acting with the other strikers in attempting to prevent the railroad company from carrying on its work, and was very antagonistic to the rangers and officers who were attempting to protect said laborers and property. We think this character of testimony was clearly admissible and should have gone to the jury, as it tended strongly to show a conspiracy between the deceased and other strikers to prevent the appellant and other officers from discharging their duties and prevent the company from carrying on its business, and to resort to force, if necessary. The fact that it was not positively shown that deceased actually participated in said assaults would not render said testimony inadmissible, it being shown that at the time of the homicide in question, and prior thereto, he was very active in picketing for and acting with the other strikers in furtherance of the common design, and prior acts of the other strikers so participating would be admissible in this case. Branch’s Ann. P. C. §§ 693, 694; also see Monday v. State, 90 Tex. Cr. R. 8, 232 S. W. 831. This evidence was also admissible for the purpose of showing the condition of appellant’s mind at the time of the homicide. Dodson v. State, 44 Tex. Cr. R. 200, 70 S. W. 969; Nicholson v. State, 91 Tex. Cr. R. 383, 239 S. W. 206; Ferguson v. State, 95 Tex. Cr. R. 212, 253 S. W. 290; Shelton v. State, 102 Tex. Cr. R. 126, 277 S. W. 663.

In bill of exception No. 19 complaint is made to the refusal of the court to permit appellant to show by the witness Patterson, a ranger, that he arrived at the scene of the homicide within about 15 minutes after the killing and before the body of deceased was removed, and while appellant was standing near the body with his pistol drawn, and that the appellant had tears in his eyes and was in a highly emotional and nervous state of mind, and that the first thing appellant stated to him was that the deceased called him a “God damned son of a bitch” and was trying to hit him with a rock when he shot deceased. We think this was clearly res gestee, and the court erred in excluding said testimony. Branch’s Ann. P. C. §§ 83 and 86, citing Boothe v. State, 4 Tex. App. 208; Brunet v. State, 12 Tex. App. 533; Garcia v. State, 70 Tex. Cr. R. 485, 156 S. W. 942; Lopez v. State, 73 Tex. Cr. R. 624, 166 S. W. 155, and many other authorities. Also see Dowd v. State, 164 Tex. Cr. R. 480, 284 S. W. 592.

There are many other errors complained of which are not likely to arise in the same manner as here presented upon another trial, and for that reason we omit a discussion of same.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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