O. W. Wicks, George Jones, and Milton Hobles, and several others were jointly indicted for the murder of George Schoeff and Alex. Holán. The three above named defendants severed from their co-defendants, and were tried jointly. All three of them were convicted of murder in the second degree, and from that conviction jointly prosecute this appeal, assigning several errors.
The first assignment of error is that the court erred in admitting the *463testimony of the witness W. R. De Bardeleben, as per bill of exceptions No. 1, which bill of exception recites as follows: “W. R. De Bardeleben, a witness for the State, was asked the question by the prosecuting attorney, 'What was the reason you went down to the trial of Addie Lytton, the scene of the difficulty, with a gun?’ To which the witness replied, 'We went there to see that no harm came to Addie Lytton, and because several days before the difficulty Alex. Nolan, now deceased, had told me that he, Alex. Nolan, had heard Ike Wilson tell Robert Thompson that he was going to summon a lot of men to the court and kill off white men, and that he was going to arrest Addie Lytton this time and carry him to Bastrop.’ This witness further stated that Addie Lytton had told him, the witness, that he, Lytton, had heard that Ike Wilson had threatened to kill him, and that he was afraid that Wilson would mistreat him at the trial; and that he, De Bardeleben, had heard that Ike Wilson had arrested an old white man down on the river and tied him, refused him bail, and walked him to Bastrop. To which question and answer defendants then and there objected for the reasons: (1) Same was hearsay; (2) irrelevant; (3) the declarations of Ike Wilson or Robert Thompson were not admissible against these defendants, or either of them, because the declarations were not made in pursuance of a common design, and no conspiracy had been proved between these defendants, or either of them, and Ike Wilson and Robert Thompson, or either of them. These objections were then and there overruled by the court, whereupon defendants, by counsel, excepted, and now here present their bill of exeepitons, and pray that same be signed, sealed, and made a part of the record.”
In approving said bill of exception the trial judge adds thereto an explanation that said testimony was offered and admitted for the sole purpose of showing the motive of said witness in going armed to the scene of the difficulty.
It is sometimes relevant and material to show the motive actuating the conduct of a witness, and in the case now under consideration there can be no question but that it was material for the prosecution to show, if it could, that the witness and other white men who went armed to the scene of the tragedy, went for a legitimate, innocent purpose, and not for the illegal purpose of interfering with the court, or its proceedings, or with the execution of the law. There was much conflict in the testimony as to which side, the whites or the blacks, began the difficulty which resulted so fatally. On the part of the prosecution it was and is contended that the blacks brought on the fight in pursuance of a previously formed conspiracy. On the part of the defendants it was and is contended that the whites brought on the difficulty in pursuance of a previously formed conspiracy. There is evidence tending to sustain both these theories. In this state of case it was relevant and material for the prosecution to show that the whites, in going armed to the place of the difficulty, were in*464fluenced by innocent motives. Proof of innocent motives on their part would be a circumstance tending to support the theory that they did not bring on the difficulty, but were the assaulted party. We are of the opinion, therefore, that the question propounded to the witness De Bardeleben, was legitimate and proper. A portion of said witnesses answer to said question, to-wit, “We went there to see that no harm came to Addie Lytton,'' was admissible. But the remainder of his answer to said question was purely hearsay and was not admissible for any purpose. When viewed in connection with the facts of the case, this illegal testimony must have operated prejudicially to the defendants, and its admission was therefore material error. Proof of motive, like proof of any other fact, must be made by legal testimony.
,The second and third assignments of error call in question the correctness of the rulings admitting certain testimony of the witnesses, Gus Randel and Joe Jackson, as to statements made by Robert Thompson and Runnels Williams, co-defendants in this prosecution. These statements were not made in the presence of the defendants on trial, and were hearsay as to them and inadmissible against them, unless a conspiracy to commit murder existed between said Thompson, Williams, and these defendants, and unless said statements were made pending such conspiracy, and in furtherance of the common design. As we view the evidence before us, the testimony of said witnesses Randel and Jackson as to the statements made by Thompson and Williams should not have been admitted, and its admission was material error.
There are several assignments of error relating to supposed defects in the charge of the court. dSTo exceptions were saved to the charge, and upon a careful examination of the same in the light of the objections urged against it, we think it is an able, clear, and correct exposition of-the law applicable to the facts of the case, and free from any material error, except in one particular, which is, that it does not instruct the jury as to the rules governing accomplice testimony. Such instruction was demanded, we think, by the testimony of the State's witness West Craft. Said witness, by his own testimony, showed himself to be an accomplice in the killing of the white men, and his testimony was prejudicial to the defendants and especially so to defendant Wicks. Defendants requested a proper instruction as to accomplice testimony, which the court refused to give, and in this we think material error was committed.
We deem it unnecessary to discuss other assignments of error, as some of the matters complained of may not occur on another trial, and we find no material errors except those we have mentioned, and because of which material errors the judgment is reversed and' the cause is remanded.
Reversed and remanded.
Hurt, J., absent.