Appellant in his motion for rehearing again urges that bills of exception numbers three (p. 66, Tr.), four (p. 73, Tr.), five (p. 86, Tr.), six (p. 90, Tr.), and seven (p. 94, Tr.), exhibit error which calls for a reversal of the judgment, and further calls attention to the facts that bill of exception number seven 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 number three that L.G. Dickerson was permitted to testify over appellant's objection that on November 16, 1928, the *Page 425 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 sixty-seven 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 the man who shot Emory Fisher, and that if appellant had so shot at witness it showed what kind of a man appellant was. Bill number four 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 decoys and get across the bayou. 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"; 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 burst the decoy in witness' hand. This testimony was objected to for the same reasons shown in bill number three, and for the additional reason that the incident was "too remote in point of time." Bill number five reflects that over appellant's same objection Stout was permitted to testify to the same facts related by Dickerson, as shown in bill number three. Bill number six 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 number seven will be adverted to later.
It must be remembered that in the present case appellant *Page 426 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 Texas Grim. Rep., 199, 272 S.W. 471, we said: "No principle is better understood than that proof of connection of A with a given crime can not be made by proof of the fact that at a prior time he did a similar thing."
Upon the general principles involved, we quote from Missouri v. State, 109 Texas Grim. Rep., 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 intent, system, or identity, when these are issues. Hill v. State, 44 Texas Grim. Rep., 603. The fact that two or more crimes were committed in the same way does not show system. Long v. State, 39 Tex. Crim. 546; Smith v. State, 52 Texas Grim. Rep., 80. It has been many times held that proof of an independent crime is not admissible by sheer force of the fact that it was committed on the same day or the same night. Woodard v. State, 51 S.W. 1122; Nunn v. State, 60 Texas Grim. Rep., 86; 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 certainidentifying facts common to both transactions, the above evidence would have been correctly admitted, upon the issue of identity."
In Story v. State, 107 Texas Grim. Rep., 266, 296 S.W. 296, 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, *Page 427 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 Texas App., 412; Hill v. State, 44 Tex.Crim. Rep.; Lancaster v. State,82 Tex. Crim. 473, 200 S.W. 167; Nunn and Luster v. State,60 Tex. Crim. 86.
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 aware 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 could prove against the accused the commission of other similar offenses, although they were without logical connection with the offense under investigation. This would be obnoxious to justice and to every well-considered announcement from 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, 51 Texas Grim. Rep., 73, 193 S.W. 666, 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 *Page 428 by a jitney driver to where other negroes were assembled in some sort of celebration, and there began a series of acts, exhibiting and shooting their pistols, and there robbed at least two parties of something like seven dollars. 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 Bateman was recognized as one of those engaged in the robbery there. In holding admissible evidence of the identity of Bateman 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 would 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 Bateman had committed another robbery, but because it was a link in the chain of evidence which fixed his identity as one of the robbers at the barn.
Another case illustrating the true limitation where the State relied on circumstantial evidence is Boyd and Standley v. United States, U.S. Sup.Ct. Rep., 139-142, Book 35, p. 1077,142 U.S. 450.
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 *Page 429 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 they 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 Texas Grim. Rep., 73, 114 S.W. 812, 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 andconnection 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 becausethere 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 Texas App., 57, 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 *Page 430 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 accused. This is a simple proposition when understood. If the theft of another horse constitutes a fact in the chain of facts — circumstances — which 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 criminative 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 can not possibly perceive what bearing the theft of the pony has upon this case. It certainly develops no criminative facts nor does it explain a competent fact, nor even yet is it 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 to unjustly prejudice the case of the appellant in the estimation of his triers."
Upon the same point, see, also, Lancaster v. State,82 Tex. Crim. 473, 200 S.W. 167.
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 by appellant was admissible to show "system." The use of this unqualified term as defining or 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. Crim. 546; Smith v. State, 52 Tex.Crim. Rep.; Missouri v. State, 109 Tex.Crim. Rep., 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.Crim. Rep.,229 S.W. 869; Cone v. State, 86 Tex.Crim. Rep., 216 S.W. 190; Long v. State, 39 Tex.Crim. Rep., 47 S.W. 363; Smith v. State, 52 Texas Grim. Rep., 80, 105 S.W. 501. In the last case cited it appeared that it was the theory of the State that Smith and Capers *Page 431 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 party may be systematically a thief, or destroyer of houses by burning, or in the participancy or execution of a crime, does not necessarily come within the exceptions above mentioned. To prove system in order to identifya 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 exceptions 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 Texas Grim. Rep., 612, 42 S.W. 65, 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 in as much 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 time thereof, does not of itself constitute system," and quoted with approval from Long v. State, 39 Texas Grim. Rep., 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 *Page 432 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 of 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 saidevidence 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 strikingdissimilarity 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 no 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 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 *Page 433 further investigation of the record, the writer has reached the conclusion that the reasoning which lead 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 general 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.Crim. Rep.,43 S.W. 336, and other cases listed under Sec. 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 hill side, 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 none of this suppositional testimony is Fisher named, or referred 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 *Page 434 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 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 exception three and five 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 * * * I 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 *Page 435 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 2000 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 there 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. *Page 436
Bill of exception number seven, 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 would likely shoot Fisher. Under the present record it is difficult to discover 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. Molineaux, 168 N.Y. 264, 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 *Page 437 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 numbers three, four, five, six and seven, 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.
Reversed and remanded.