this does not apply to the other witnesses, because the defendant could not close their mouths, and most of them were state's witnesses and earnest in the prosecution. Some of them were the children of deceased, who were sufficiently interested to employ prominent attorneys as counsel for the prosecution. These witnesses were not questioned as to the change of appellant's clothing, and so far as this record is concerned defendant had on the same clothing when he was arrested that he had on when he left home before the tragedy. No witness in the case would have been better versed perhaps with reference to this matter than the Mexican, Pena, who was in the hack with appellant, and yet he did not see any mud upon appellant's clothing, nor does he speak of any change of clothing by appellant during the entire day or night. That he was not asked about it is no reason why the jury should presume that appellant did change his clothing.

It is a fair deduction, if not an irresist- this line therefore the jury should deduce from ible conclusion, that the party who did the that that he did have mud on his clothing, killing must have had mud on his person and that he had changed his clothes. That and clothing. The state proved that appel- she did not testify in regard to this might lant's gun had mud on it near the muzzle at be a matter, perhaps, under the decisions, the time of his arrest about 2 o'clock at that could be discussed before the jury, but night after the killing about 9:30 o'clock. There was no attempt by the state to show that appellant's clothing or person was besmirched by the black soil. There was no attempt to prove that he had changed his clothes after the homicide and before his arrest. Had he changed his clothing this fact could have been shown by the state, as we understand this record, from various witnesses. The Mexican, for instance, went with appellant in the hack from his home to Martindale, thence to Limerock, and thence on his return from Limerock to his home, the place from which they started. He naturally would know, or ought to have known, how appellant was dréssed from the time they left appellant's home until they returned that night. It would be natural for him to observe appellant's clothing on his return to the hack, if his testimony is true, and discover mud about his person if such was to be found. Yet this witness was not asked anything with reference to these phases of the case. The state's theory with It is the duty of the state to make out its reference to this witness was that the and case. It was not incumbent upon the defendappellant left home in the hack together, ant to prove a case for the state. He is clothwere together all the evening, and returned ed with the presumption of innocence, and in to appellant's home together that night. Ap- cases of circumstantial evidence the state pellant and the Mexican were both arrested by its evidence must exclude every reasonat appellant's residence about 2 o'clock that able hypothesis except that of guilt. night. Quite a number of witnesses also saw appellant been found with mud upon his appellant at Martindale; at Martindale; some of whom clothing, or that he had changed his clothtalked with him and were with him. There ing, or that he had pulled off his shoes and is evidence also that a number of witnesses gone barefooted, might have been circumsaw him in a saloon at Limerock and in a stances of more or less weight of an incrimThe state must meet and store at Limerock as well. None of these inating nature. witnesses were questioned with reference to overcome the presumption of innocence to whether he had changed his clothing, or with the exclusion of every reasonable hypothesis reference to the fact there was any mud up- except guilt. Failure of facts to prove the on his clothes. It is true that the witness- state's case does not raise the presumption Inferences es at Martindale and Limerock may not have of guilt against the accused. and deductions from failure of proof are to seen appellant, and doubtless did not see him, after he left Limerock, but they saw be taken not against the accused but in his him at those places in the evening and up favor. The position of the state that the to about 9 o'clock or later, and they saw him jury might presume against the accused in the absence of such facts is not a correct view again early the next morning, for he was arrested at 2 o'clock and reached the scene of the law. The jury is not authorized to of the homicide at 4 or 5 o'clock in the so presume. The rule is that the state must morning. The witnesses who saw appellant prove its case to the exclusion of every reaat Limerock also saw him under arrest at it fails to so prove incriminating facts it sonable hypothesis except guilt, and where the place where the homicide occurred. redounds to the benefit of the accused. There They could have given evidence, if such was are a great many facts in this record that a fact, that his clothing had been changed. were not collated in the original opinion and The state, in its original submission and on will not be collated in this opinion. rehearing, urges that appellant's wife could record contains something like 180 pages of have testified to whether or not his clothes testimony, and deals very extensively in all had been changed, or that mud was on them, character of details on direct as well as inasmuch as he returned that night about cross examination of the witnesses. We are 12 o'clock and she saw him, and that because of opinion in writing originally and now that

Had

The

criminating facts. To undertake to state the hack before they left appellant's home, all the testimony in a voluminous record of facts as contained in this transcript would render the opinion uselessly long.

The

He also states:

"I didn't see any sacks in there."

flour, some beans, coffee, and potatoes at Pena testified that he bought a sack of Martindale. He says:

went with him to Martindale where Pena bought a lot of groceries and put in the hack, among other things a sack of flour, As stated in the original opinion, the ques- some coffee, and beans and possibly other tion of motive is not always a criterion, but groceries. The witness Sanderson testified it adds to the strength of a case when prov- that he saw a box of groceries placed in the ed as one of the circumstances, or it might hack by the Mexican, Pena, but saw no detract from it with no motive proved. It sacks in the hack; that he did not see any is not a sine qua non in any event. gun in the hack. He was asked if there state's theory on the question of motive seems might not have been a gun under the front to be based upon the fact that appellant owed seat. To this he answered there could have his mother-in-law something like $11,000 on been one, but he did not see it; that a gun a tract of land, and that he was afraid she might have been placed under the seat of the would press him for payment in January as hack by being taken to pieces, but he did the note then fell due. This is more of a not observe one. His language was this: theory, however, than a fact. We have look- "I didn't see any shotgun. I guess anybody ed over this record again to ascertain if there could have put one under that seat if he had is any tangible reason to believe that appel- taken it to pieces. I did not look under that appel-seat." lant thought his mother-in-law was going to press the collection of that debt, and we fail to so find. It is also urged that by the death of the mother-in-law his wife might secure her portion of her mother's estate. That is speculative, because there is nothing to show what disposition the deceased was going to make of the property, and at the time it was not known, so far as this record is concerned, what her purpose and intentions were. One or more of her sons had signed her name to checks without her authority, upon the discovery of which she protested and ordered the bank not to honor any more checks unless she herself signed them. The killing of the mother-in-law by appellant would not have canceled the $11,000 debt. She retained a vendor's lien on the land and was supposed to be sufficiently secured, and there is no evidence what part of the property his wife or any of the children of deceased would get. We hardly think this is of any serious import. Had she died without a will his wife would have, under the law, secured her proportionate share as a child, and there is no evidence that a will had been written changing the legal status of her rights. This reason would apply to any of her brothers and sisters.

"I did not see anything in front of the hack where our feet were except the points of the sacks and the rubber that was in there. I did not see any gun in the hack then." He also states:

"I did not see Mr. Wilkie barefooted any time that night. I was sitting on the front seat of the middle of the hack. I saw that he went the hack and Mr. Wilkie got the gun from about around to the middle of the hack and got the gun, but he did not move anything."

He also stated after his arrest, while at the justice court at Staples:

"I told my wife that Mr. Wilkie had no shotgun in the hack that night."

Speaking also of an interview he had with the sheriff and deputy sheriff of Guadalupe county while in jail at Seguin he said:

"I did then and there tell them that Wilkie had no gun in the hack that night, and I told them that Wilkie did not get out of the hack after he left the saloon and until we got to the river."

It was between the saloon and the river where the witness testified on the trial that from the middle of it. He also states: Wilkie go out of the hack and got the gun

"I never at any time told any one that Mr. Wilkie had a shotgun in the hack that night before I was taken to the San Marcos jail and Mr. Terrell that Mr. Wilkie had no gun in the had talked to the Mexican Santiago. I told hack that night, and that Mr. Wilkie had never got out of the hack from the time he left the saloon until he got to the river."

With reference to the testimony of Pena in regard to the trip taken by himself and appellant on the evening of the homicide, and especially as it relates to the hack and the gun and the contents of the hack, it may be stated that Pena made many statements to the effect that he did not see a gun in the hack, and that he never made a contrary statement showing there was one until he had been removed from the jail in Guadalupe county to the jail in San Marcos, Hays county, some two months or more after being placed in the Guadalupe county jail. Upon the trial he testified that appellant got out of the hack at a point he designates and We deem it unnecessary to go into a went to the middle of the hack and got a further detailed statement of these matters. gun from the hack, stating that he was going We have reviewed this record again, and to see a man who owed him something. Pena are firmly convinced of the fact the opinion assisted appellant in hitching the team to in the original hearing is correct. The bur

These are some quotations from Pena's testimony to show the divergence and difference between his statements prior to the trial and his evidence on the trial. These quotations are taken from the record, and to which he testified on the trial.

In prosecution for passing forged instrument, state contended that the signature of appelwhere the evidence, circumstantial or direct, lant was genuine, and that the payee's name shows prima facie that collateral instruments was forged. These questions were to be

"The state has introduced in evidence a number of checks with their indorsements, other than the check mentioned in the indictment, and upon which the defendant is being tried in this case, and with reference to these checks you are instructed: (1) That the said checks were showing the intent of the defendant and his only admitted in evidence for the purpose of system of conduct with reference to such checks, if in fact they show such intent and system of conduct, and they cannot be considered by you for any other purpose. (2) You are further instructed that you cannot consider for any purpose any such checks other than the J. T. Lowe check, except such, if any, as you may find and believe from the evidence beyond a reasonable doubt were altered or knowingly passed as true by the defendant without lawful authority and with intent to injure and defraud."

solved largely, if not exclusively, by the The same may be said of the other checks, knowledge of the witnesses as to the hand- practically all of them. It is a rule that only writing of appellant. These transactions the case upon which the indictment declares cover two or three years of time. The a violation is to be tried. Extraneous or chceks were introduced by the state upon collateral offenses may be introducible to the theory that it was necessary to prove in show intent, knowledge, or identity, and tent of the appellant by means of systemat sometimes this may be inferred from system. ic passing forged instruments. System is But wherever the state turns aside and inonly used where it connects with the main troduces collateral offenses, and it becomes fact, and this to show intent or knowledge necessary to prove the case, they are ador identity. Independent of these, system mitted with a view of ascertaining whethis not introducible as we understand the er they are genuine. If not, they should not law. It is not permissible to prove inde- be introduced. This constitutes as many pendent transactions unless by doing so they trials on the independent offenses as there show the intent of the accused, or connect are number of alleged independent offenses him with the main fact; that is, the case or collateral crimes. This diverts the minds , on trial. The mere fact that system was of the jury and of the court from the case pursued is not admissible independent of the on trial. It involves trials separately upon other matters. The writer has not believed, each collateral offense to ascertain whether nor does he yet believe, that these checks or not he is connected with that offense were admissible from any viewpoint of this criminally. This was recognized by the record, or of the record in the case of Fry court, and the jury instructed with referv. State, 182 S. W. 331. He took occasion in ence to it. The court's charge in this connecthat case to note the fact that he did not tion is as follows: believe the extraneous offenses, or the details thereof, should have been admitted, but the majority of the court did not take that view of the case or the law. But here we have ⚫ an entirely different case from the former one, and in all of the cases there was an issue sharply drawn and hotly contested that appellant's name was not genuine; that his name as written on these checks was not in his handwriting. The case is one of purely circumstantial evidence, and the court so charged the jury. In this case we are of opinion these checks should not have been admitted under the circumstances stated. In all of the checks, amounting to a great number, the issue was fought with refor ence to each check introduced as to the gen- So it will be seen from the court's charge, uineness of appellant's name. From the fact as well as from what has been said with refthat his name was on these instruments, erence to the fact, that appellant was tried the deduction was supposed to be drawn upon each collateral offense, and the jury that, if he signed his name upon these checks, was so informed, and that they must find he forged the name of the payee in the from the evidence beyond a reasonable doubt checks, or knew, if he did not sign the name, that these checks were altered or knowingly that the indorsed name was a forgery. This passed as true by defendant without lawful necessarily involves evidence as to the gen- authority. Then in order to arrive at a conuineness vel non of appellant's name and of clusion on the part of the jury as a predicate these various checks. So it will be seen for the consideration of the illegality of from this statement that each check involv- these checks, they must first determine that ed a separate trial as to that particular they were fraudulent or altered. So it will transaction, and we have the main trial be seen, before the jury could consider these turned aside from passing the instrument collateral offenses as evidence, they must made payable to and indorsed by Lowe, first determine, after hearing all the facts which was the check upon which the indict- pro and con, that they were illegal and ment was based to all the other checks in- fraudulent before passing upon the intent troduced. There is no question, it seems, of the appellant. If there were 150 to 200 of the fact that the check was genuine as of these checks introduced, the jury would drawn by Padgett, the alleged county treas- necessarily, under the facts, under the issues and under the charge of the court, have to determine first whether these checks were fraudulent, and if so, then they might consider them with reference to the main case, but, unless they did so determine, they could not be so considered. That is the ef

urer.

The fraud consisted in the indorsement of Lowe's name upon the back of it, and passing the check in that condition. Lowe testified that he did not sign his name, and that the county did not owe him the amount for which the check was drawn.

means of destroying testimony, then it was admissible, but is of the opinion that the details of the whole trouble are not admissible. It was not necessary to go into all details of the shooting affair, but if wrong about that then there is another question; that is, as far as the state did go into these matters as criminating evidence, the defendant had the right to have witnesses present to meet and to introduce all defensive evidence to meet the state's evidence. The opposing side always has a right to explain any matter introduced by the other side which tends to incriminate or to be used adversely to him. This has been the subject of so many decisions, and, not only so, but by express enactment of the Legislature we deem it unnecessary to discuss that matter. It, seems from the bill of exceptions that there had been a trial of the homicide case against appellant, and he had been acquitted. If the state upon another trial should introduce the trouble occurring at the courthouse which resulted in the homicide, then, as far as the state goes in introducing incriminating circumstances and facts against him, defendant would have the right to rebut this by any testimony legitimately meeting and contesting such crim

fect of the charge of the court. There is no question that appellant was tried on many of them on their merits prerequisite to their consideration as evidence. Under such circumstances these checks were not admissible. The charge above quoted, as well as the fifth subdivision of the charge, seems to be erroneous. Exception was reversed to the fifth subdivision because it was illegal in various ways, and especially that the jury must determine whether or not defendant be lieved these checks were genuine or false, and, if they should believe that the indorsements were made without legal authority and with intent to defraud, then they should consider them; otherwise they should not. The theory of the defendant was that, as the state was relying upon the fact that he passed the instrument, it being a case of circumstantial evidence, the jury must find that he, and not the jury, believed the check was not genuine. If he believed the check was genuine, he was entitled to an acquittal, because there would be no fraudulent intent. The jury must look at this case, as all the other cases, from the viewpoint of defendant, and not from their viewpoint. If defendant believed the check was not fraudulent, or that the indorsement was made with law-inating facts. This case, it occurs to the ful authority, then he would not be guilty, although he may have passed it. But the court instructed the jury that it was their province to believe the indorsement was made without lawful authority and with intent to defraud. Of course, they must so believe, but as a prerequisite in a case of this sort they must also ascertain the fact that defendant so believed. This matter was a part of the case, and the jury should have been instructed to look at it from defendant's standpoint as to whether he believed the indorsement was illegal. The exception to this charge is as follows:

"Because the same instructs the jury that, if the name J. T. Lowe was written on the back of the instrument set out in the second count of the indictment by defendant Fry, or any other person, the same would be forgery, and said paragraph assumes that the defendant knew that said indorsement to be a forgery." The belief of the defendant was a matter for the jury to determine, and not the court. We are of opinion this exception was well taken.

There is a bill of exceptions reserved to the action of the court, permitting the state to go into the homicide transaction, involving the difficulty and all of its details, as well as the preparation for the entering of the courthouse at night and taking checks from the vault, which finally resulted in the homicide. This matter was gone into in detail in many ways which we deem unnecessary to detail.

The majority is of opinion this testimony was introducible. The writer is of opinion that if this attack was made upon the officer at the courthouse with a view of

writer, is an exemplification of the rule that extraneous matters should be gone into cautiously. This record seems to make it certain that a great number of extraneous matters were placed before the jury, the number of which the writer has not taken the trouble to enumerate, and all the facts and circumstances connected with each one of those collateral offenses introduced. These extraneous matters were proved before the jury by the state, and denied by appellant. So we have the jury trying as many different offenses in this case as there were collateral offenses introduced. Before the state could

use these matters against the accused upon his trial, it was necessary for the jury to determine the guilt of the defendant or apparent guilt in each collateral offense. If there were 150 to 200 of those extraneous crimes, then the jury had to determine in each that appellant was criminally connected with it to authorize its consideration under the theory of system to show his intent or knowledge. In the case of Fry v. State, 182 S. W. 331, it is recited there were 500 or 600 of these extraneous crimes' or offenses introduced. The statement of this matter ought to show the error in the use of such testimony.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PRENDERGAST, J. All the checks and indorsements thereon held herein inadmissible, in my opinion, were clearly admissible, and correctly so held in the other case appealed by him (182 S. W. 331), and that case