On Rehearing.
SOMMERVILLE, J.In the two preceding opinions in this case the court had occasion to remark upon the manner in which the case had been tried. In our opinion, no bill of exceptions, except the one numbered 9, was sufficient, in itself, upon which to base a reversal of the judgment appealed from.
[15] But in reviewing the case on this rehearing we are constrained to the opinion that defendant has not had an entirely fair trial before an impartial jury. That is, the trial was attended with so many wrongful acts and sayings that, in the aggregate, they rendered the trial unfair to the accused.
The case is a particularly difficult one. The defendant is a colored man, who was charged with and was being tried for the murder of a white man, an officer of the law, while in the discharge of his duties as sheriff of the parish of Winn. The jury was composed of white men, who, doubtless, were unprejudiced and unbiased, as was testified to by them on their examination on their voir dire. But insinuating remarks and statements contained in argument and in questions addressed to the defendant while a witness on the stand, on the part of the prosecuting officer, were well calculated, in our opinion, to prejudice the defendant in the eyes of the jurors. There were suggestions that the defendant was guilty of the crime charged against him, and that he was using ulterior means for obtaining an acquittal. It is true, in almost every instance, objection was made on behalf of defendant, and the judge sustained those objections and instructed the jury to disregard the suggestions and statements. But that is not a fair way or impartial mode of prosecuting a person charged with crime. The evidence, we are given to understand, was purely circumstantial against the defendant. Considering all the circumstances, a rehearing was granted in the case, particularly with reference to bill numbered 9, covering the testimony of the witness Teddlie, the objections thereto, and the overruling of those objections.
Defendant complains of our ruling upon the change of venue, ordered from Winn parish to Jackson, in which latter parish the case was tried. Defendant himself moved for a change of venue from Winn to a parish in an adjoining district, specially excluding Jackson parish from consideration, which was in the same district with Winn. The state afterwards moved for a change of venue from Winn to Jackson parish, and the change was ordered. We have carefully reviewed the evidence on this point, and there is no reason for changing our ruling with reference thereto. We are of the opinion of the district judge who ordered the change, that a fair and impartial trial could have been had in Jackson parish.
*611[16] Bill of exceptions No. 9, before referred to, contained objections made by tbe defendant to certain evidence brought out by the district attorney, on the ground that such evidence was hearsay and inadmissible. Another witness, Jennings, testified on the former trial of the case, and we had there ruled that his testimony was admissible to prove motive and intent on the part of the defendant in killing the sheriff. Defendant knew, to some extent, to what the witness Teddlie might testify, and therefore objected to it on the ground of being hearsay. The witness was asked to give the substance of a conversation to the jury, which he had held with the deceased some hours prior to the death of the latter. Teddlie was the first witness put on the stand by the state. The corpus delicti had not been proved. The defendant, of course, had not been a witness, and his character and reputation were not at that time an issue in the case. Teddlie, in answer to the question, said:
“I went there in the commissary that evening about 6 o’clock, don’t know the time, and Mr. Howell (the deceased sheriff) asked me to go with him that night; said it was Saturday night, pay night, and he was expecting negroes in there to sell whisky, and that he was expecting to take them up if they were there. He said it was Pete Morgan and John Lewis. He said that they were two bad negroes and said that he was afraid of them. He asked me to go with him, and I told him I couldn’t go with him then, but would probably go with him after a while. He said he went down there a few Saturday nights before that, and Pete Morgan was in town that night.”
Objection was again made on behalf of defendant that the testimony was hearsay and immaterial; that proof of a prior difficulty could not be proved by hearsay testimony. The objection was overruled, a bill was reserved, and the witness continued as follows:
“At Green Watkin’s cursing and raising sand. He said he went over and asked Morgan to hush up and behave himself; and Pete talked pretty rough to him, told him that he was no better than a negro himself, and- that every time they had a supper over there that he was always around trying to associate with them, and asked him why he didn’t go over among his own kind and not be trying to associate with negroes. Howell said he guessed the thing he ought to have done was just to have shot Pete, he guessed at that, but said he went on back; he was alone, and he went on back over in town. He said a few days later he went out west of Atlanta to serve some citation papers on some one, and that Pete was out there in his front yard doing some work when he rode in sight of the house, and said Pete went back in the house, quit work, and went in the house and stayed in the house until he passed, and that he came out then and went to work again. Mr. Howell went out and finished his work and he came back, and as he rode in front of the house Pete did the same thing again, went in the house and stayed in the house until he passed. Q. Then what did he want you to do? A. He said he wanted me to go down and see if I could see Pete Morgan down there, and if I could find him down there to try and buy some whisky from him. He asked me if I had any money, and I told him that I did, and he said if I didn’t have any money that he had money to put up for me to buy the whisky with.”
Tbe district attorney said in argument that he did not know that the witness would relate all of the conversation which he had had with the deceased sheriff, and that he was not responsible for the incompetent evidence. He did not stop the witness when the latter went beyond the question propounded to him, and the judge did not stop him. All of the testimony went to the jury, and it should not have been admitted over the objections of the defendant.
The testimony of the witness Teddlie, to the effect that Pete Morgan was a bad negro; that the deceased was afraid of Pete; that Pete was a bootlegger; that the deceased had said that he had been at Green Watkin’s a few Saturday nights before and that Morgan was cursing and raising sand; that he tried to get Pete to hush up and behave himself; that Pete talked very roughly to him, and told him (Howell) that he (Howell, a *613white man) was no better than a negro, and that he was always trying to associate with negroes when they gave a supper; that he (Howell) guessed that he ought to have shot Pete at that time, etc. — was all hearsay, inadmissible, and was highly prejudicial to the accused.
We are of the opinion that the defendant has not had a fair and impartial trial, and the case will be remanded for trial.
It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be avoided and set aside, and that this case be remanded to the district court for the parish of Jackson to be there proceeded with according to law.
MONROE, C. J., dissents and assigns reasons. See 82 South. 721.