(dissenting).
My brethren overrule appellant’s motion for rehearing without written opinion.
It is my opinion that the affirmance of this conviction does violence to and overturns two rules of law long existing in this state:
The first is the error in holding admissible proof of the hearsay declarations of the deceased prior to the killing evidencing the fact that the appellant was “gunning for him.”
From the standpoint of the state the killing was deliberate, unprovoked, and unjustified. From the standpoint of the appellant it was a killing in self-defense against the actual attack and threats of the deceased.
Appellant testified that in 1948, about nine years prior to the killing on May 29, 1957, he was employed at the Alpine Inn, a beer tavern. A difficulty arose between the deceased, Charles Lolan Hunsaker, also known as Jack Hunsaker, and his (deceased’s) wife. When Turns, one of the owners of the place, attempted to stop the fight the deceased shot at him. Appellant joined in the difficulty, whereupon deceased shot at him, too. Appellant then shot and injured the deceased.
It was appellant’s position, and he introduced evidence to that effect, that from that time on deceased carried a grudge against him and repeatedly uttered threats to others against him which were communicated to him.
To show a communicated threat, the appellant called as a witness, E. R. Solomon, who testified to the effect that after the Alpine-Inn shooting and while deceased was in the hospital following his injury, deceased said to him, in referring to the *235shooting, “ * * the next time I won’t miss.’ ” Solomon said he communicated this threat to the appellant.
Upon cross-examination, the state interrogated the witness as to a conversation he had with Cliff Hunsaker, a brother of the deceased, as follows:
[“Q. Now about three weeks after Hunsaker’s funeral did you have a conversation with his brother, Cliff Hunsaker?] A. Yes, I did.
[“Q. And I believe you expressed your sympathy to him at that time?] A. That’s right.
* ❖ ❖
[“Q. Isn’t it a fact, Mr. Solomon, that you told Cliff Hun-saker in the same conversation where you expressed your sympathy to him, that you had tried to get hold of Jack by telephone before the killing, to tell him that somebody was gunning for him?] A. No.
[“Q. What did you tell him in that regard?] A. I told him I was sorry for what had happened.
l“Q. And I’ll ask you sir if you didn’t also tell him that you had tried to get hold of Jack to warn him that someone was looking for him?] A. No. I didn’t call him sir.
[“Q. I know you didn’t call him but didn’t you tell Cliff that you tried to warn Jack?] A. No. Jack called me.
[“Q. And what did Jack tell you, that someone was gunning for him?] A. Yes.
[“Q. Jack told you someone was gunning for him.] A. He wanted to know * *.
[“Q. Did Jack tell you who was gunning for him?] A. Well, he knew who it was and I knew who it was. He told me that people were * * *.
i’¡: %
[“Q. And was that person J. T. Yates?] * * * A. He thought it was J. T. Yates.
* * * *
[“Q. In any event he told you someone was gunning for him.] A. Yes sir.”
*236Appellant’s objection to such testimony as being hearsay was overruled.
I am convinced that the receipt of such testimony constituted reversible error. \
The practical effect of the testimony was to place before ihe jury the fact that prior to the killing the deceased had told the witness that “someone was gunning for him,” and that both the witness and the deceased knew to whom the “someone” had referenqe, and that the deceased thought it was the appellant —all this being out of'the presence and hearing of the appellant.
That such testimony wTas subject to the objection urged is, to me, apparent.
The case of Murphy v. State, 40 S.W. 978, is directly in point. There „the appellant sought to prove that prior to the killing the deceased had made the statement that his life had been threatened by several men, that he had to carry arms to protect himself,- and that the men threatening him were dangerous. It was there held that the testimony was properly rejected as being hearsay.
; ■ Here, in effect, the state proved the very thing that the accused in the Murphy case sought to prove and was denied— which was that, here, the deceased had made the statements that “someone was gunning for him * * * he knew who it was * * * and * * * He thought it was'J. T. Yates.”
• ■ The Murphy cáse was cited with approval in Woodard v. State, 51 S.W. 1122. In that case the state introduced in evidence a conversation the deceased had with his wife, prior to the killing, á¡3 to his carrying a pistol at the time of the homicide because of an anticipated difficulty with someone. Such testimony was held to be inadmissible as being hearsay.
Woodard v. State, 42 Texas Cr. Rep. 188, 58 S.W. 135, is also in point. See, also, 18 Texas Jur., Sec. 59, p. 121.
The case of Hoyle v. State, 153 Texas Cr. Rep. 548, 223 S.W. 2d 231, also holds that testimony of such nature was not admissible. In that case the conviction was for the murder by appellant of his wife. The defense was that he was justified in his act. The opifiion does not further elaborate upon that defense. The state introduced in evidence a divorce petition filed *237by the deceased against Hoyle, in which it was alleged that he had threatened to kill her. The receipt of such evidence was held to be error.
The contention of the state in that case was that, inasmuch as Hoyle had first gone into the fact that a divorce suit had been filed, the introduction of the petition was authorized. If the state could not prove the statement of the deceased made in the divorce proceeding that her life had been threatened: by her husband, neither could the state have proven such fact by some person to whom the deceased might have made such statement.
The analogy between the Hoyle case and the instant case is therefore apparent.
In addition, and as showing the second error, in the instant case, the state did not stop with the introduction of the hearsay evidence above mentioned but, in following the predicate it had laid as to the conversation between the witness Solomon and Cliff Hunsaker, the deceased’s brother, three weeks subsequent to the funeral, the state proved by the witness Cliff Hunsaker that at that time the witness Solomon said to him:
“ T tried to call him [the deceased] and warn him that somebody was trying to kill him.’ ”
Because the witness Solomon denied making such statement, the state was permitted to impeach a material witness for the appellant upon an immaterial matter.
Whether Solomon had or had not tried to call or reach the deceased prior to the killing to tell him that somebody was “gunning for him” or was going to kill him was immaterial to any issue in the case.
Not only was the testimony of the witness Hunsaker inadmissible as impeaching the witness Solomon but, in addition thereto, such testimony tended strongly to suggest — in the light of the other and inadmissible testimony of the witness — that the appellant was in fact “gunning” for the deceased and the witness Solomon knew it.
The controlling rule of law is stated in Branch’s P.C., Vol. 1. p. 220, Sec. 198, as follows:
*238* * If the State seeks to draw out new matter from a defense witness on cross-examination and fails to elicit the desired answer, it is error to allow the State to impeach such witness by proof of the desired facts by other witnesses, and thus get before the jury hearsay evidence which took place outside of the defendant’s presence.”
See, also, Corley v. State, 160 Texas Cr. Rep. 504, 272 S.W. 2d 354.
For the errors pointed out, the judgment ought to be reversed and the cause remanded.
I respectfully dissent.