Concurring.—I concur in the conclusion reached by the majority of the court. The evidence of the prosecution, considered alone, to my mind wholly disconnects the Swearington transaction from the Dobson transaction. Witness Gouraud was permitted to testify, over objections, that Crowell pushed Swearington away from the bar, and said to Frank Nort: “Frank, go get on him; put him down.” This command was instantly obeyed. When Swearington was disposed of, and had left Crowell’s place, the same witness was permitted to testify, over objection, that following the transaction “Mr. Crowell told Frank Nort that he intended to place him [Nort] in full charge of the bar, and he says: ‘I expect you, Frank, to run things the way you see fit, and keep order around here. I have been looking for a man like you for a long time, Frank’—and he says: ‘I am *78pretty well satisfied.’ ” It is contended by the state that the fact that Nort instantly obeyed the command of Crowell, and threw Swearington out, assaulted Swearington, and expelled him from the building is evidence of a common scheme existing between Crowell and Nort; that Nort and Crowell had formed a compact by which Nort had agreed to carry out the wishes of Crowell; and, the Dobson transaction following closely upon the Swearington incident, the two transactions became one in fact, and the Swearington incident became evidence throwing light upon the relation existing between Crowell and Nort, and tended to connect Crowell with the Dobson homicide. The evidence was offered and received for the purpose of showing the relation existing between Crowell and Nort, and any pertinent evidence tending to show an illegal relation between these parties, by which the homicide was accomplished, would be relevant. The Swearington transaction alone would have no such tendency. The statements made by Crowell to Nort, above quoted, immediately following that incident, conclusively show that no prior understanding existed between Crowell and Nort for any purpose in connection with either transaction. Those statements clearly indicate that Nort was on trial as to his qualifications as a fighting man, and in the opinion of Crowell, he had satisfactorily stood the test as such fighting man, and, as Crowell wished to employ such a man about his business place, he was satisfied to employ Nort, and did employ him, giving him instructions as to the duties that he would be required to perform. The Swearington incident became closed, and wholly disconnected from anything which occurred afterward.
The transaction in which Dobson lost his life began at the time Crowell requested Nort to go to Dobson’s place for the “swatter” claimed by Crowell, and ended when the conflict between Dobson and Nort closed. All matters and things which transpired within that period of time, in any manner connected with that transaction, were a part of the transaction, and were relevant as evidence comprising the res gestae (Irvine v. State, 104 Tenn. 145), and were admissible as such, all comprising one transaction. The Swearington transaction was closed before the Dobson transaction began, and neither can be considered any part of the other for any *79purpose. Evidence of the Swearington transaction was calculated to prejudice the rights of appellant when on trial for the killing of Dobson, and we must presume that his rights were prejudiced by the allowance of such evidence.
The remaining questions are fully considered in the principal opinion, in which I fully concur.
NOTE.—The authorities on the admissibility of evidence of other crimes in criminal case are gathered in an extensive note in 62 L. B. A. 194.-