Fondren v. State , 74 Tex. Crim. 552 ( 1914 )

I had not intended to elaborate my original dissent, or suggest further reasons why my brethren were and are in error in affirming the judgment, and in overruling the motion for rehearing, but counsel for appellant have furnished me with an argument on questions not fully discussed in original dissent so full, clear and unanswerable why my brethren are in error I am convinced that same should be perpetuated. I therefore adopt same as further reasons, — as part of my dissent, — why this judgment should be reversed, and I now adopt same, which is as follows:

"In the court below counsel representing appellant reserved and presented many complaints with reference to the actions and rulings of the trial court. These matters were all fully discussed in the brief filed in this court. The opinion of the court evidences that the court has given all of these matters considerable attention, and while all of them are brought forward and again urged by us in motion for rehearing, still we do not deem it necessary or even proper to undertake to discuss each of them in detail. In this connection we will state that we do not intend to discuss again at length the objections to the indictment. The matter is discussed so thoroughly in the dissenting opinion filed by Judge Davidson that we do not feel that we could add anything to what is there presented. There are, however, a few matters which were not presented at any great length in the original briefs, and with reference to which, we believe, after the most careful study and consideration of the case. that the trial court committed clear and injurious error against the rights of this appellant. As we have said these matters were not stressed in the brief and are not discussed at any length or any authorities cited in the court's opinion. We therefore deem it proper in this written argument to discuss these matters at length in connection with the authorities that we think are applicable.

"The errors that we refer to relate in main to the action of the trial court with reference to the admission of the testimony of the witnesses Pansy Kirby, James Wilson and others, as shown by appellant's bill of exception duly reserved. We will consider this testimony in the following order: First, the testimony of Mrs. Kirby with reference to the conversation between her and her grandfather and grandmother. Second, her testimony with reference to the conversation between herself and the assistant county attorney. Third, the testimony of the assistant county attorney with reference to the conversation between himself and Mrs, Kirby. Fourth, the testimony of the assistant county attorney with reference to the conversation between himself and the prosecuting witness Daisy Moore. This testimony was all admitted by the trial court upon the theory that it was proper evidence tending to rebut the contention of appellant that the Kirbys had influenced the prosecuting witness to testify against him and had instigated the prosecution.

"First. It is clear to us that the trial court erred in admitting, over objection of defendant, the testimony of Mrs. Kirby with reference to the conversation between herself and her grandfather and grandmother, and in which they advised her, in effect, to go back to Fort Worth and have appellant prosecuted. This testimony was immaterial to any issue in the case; it involved a conversation and transaction had at a time and between parties when appellant was not present; it placed before the jury the advice of the grandfather and grandmother to have appellant prosecuted, and from this by fair, if not necessary, inference their opinion that he was guilty. It is conceded by counsel representing the State that all of this testimony was hearsay. It is, therefore, incumbent on the State to bring the testimony within one of the exceptions to the hearsay rule. It has not been brought within any of these exceptions. The mere fact that it was rebuttal testimony does not exempt it from the application of the well settled rule against the admission of hearsay. A party is no more entitled to rebut, than he is to support, a given issue with hearsay.

"The bill of exception concerning the admission of this conversation shows that the witness Pansy Kirby was the sister of the prosecuting witness Daisy Moore; and that she testified she met the defendant in Fort Worth on a certain Friday, and after having a conversation with him went over to see her sister Daisy, who was then at the home of a Mrs. Chancellor on Cherry Street in Fort Worth; and that after this she had a conversation with her husband with reference to reporting this matter to the officers; that she talked to her husband about reporting it, and that her husband told her, in effect, that she ought not to report the matter until she had seen her grandfather and grandmother; that they were older than herself and knew more about such matters; that her husband had reference to her grandfather and grandmother, Mr. and Mrs. J.R. Browning, who lived at Weatherford, about thirty-two miles from Fort Worth. This part of the bill of exception is important for the reason that it shows that before seeing her grandfather and grandmother she had talked with her husband with reference to reporting appellant to the officers; and that he had advised her not to do this until she had gone over to Weatherford and talked the matter over with her grandfather and grandmother, and had received their advice. Thisshows that she went to Weatherford to get their advice withreference to having appellant prosecuted, or at least withreference to reporting the affair to the officers. After this introductory statement the bill then shows:

"`Mr. Wilson (of counsel for the State): Q. When you got over there and told Mr. Browning what had happened did he give youadvice about the matter? A. Yes, sir. Mr. Shadle (of counsel for defendant): We object to that about any advice he gave her up there about the matter, it is not binding upon the defendant and is wholly immaterial. Mr. Wilson: We think it is right for the State to show on whose advice she acted. Mr. Baskin (of counsel for defendant): We except, — hearsay and a matter that occurred outside the presence of this defendant and he is not bound by it. Mr. Wilson: It is not offered as any evidence tending to connect the defendant with the commission of this crime. Mr. Baskin: We still object and except. Mr. Wilson: Q. Your grandpa Browning and your grandmother, have they got great grandchildren? A. Got one. Q. That is your child? A. Yes, sir. Q. Is Mr. Browning, J.R. Browning, the brother of Lieutenant Governor Browning, who lives in Amarillo? A. Yes, sir. Q. Is Mr. Browning the one you refer to as the father of your mother? A. Yes, sir. Q. When you reported this matter to him, I won't ask you in detail, but did you tellhim what you had heard and seen over here? A. Tell grandpa? Q. Yes, ma'am. A. Yes, sir. Mr. Shadle: Our objection and exception goes to all of that. Mr. Wilson: Q. What did he advise you? A. He told me and my grandmother both — Q. What did they advise you? A. They told me "You go back home and in the morning you call up the prosecuting attorney's office," and I did, and I could not get anyone, and he told me if I could not get you at the office to call up your residence and look it up — Q. Who did he say get? A. He said get Mr. Wilson, Jim Wilson, and he said, "He is assistant prosecuting attorney there," and I done that next morning like they told me to; and he said, "You tell them all about what happened. Tell them to come to your house, 1211 Gould Avenue. Tell them everything when they get there." Q. Did you know I lived over here then? A. No, sir; I did not know you lived in Fort Worth. Q. Did you ask — did you act on his advice in thematter? A. Yes, sir. Q. Did you phone me? A. Yes, sir.'

"The witness then details how she made an appointment with Mr. Wilson, the assistant county attorney, and what occurred between them at this appointment. This phase of the testimony we will discuss later. It is clear from what we have set out above that Mrs. Kirby first talked with her husband about the matter of having appellant reported to the officers, and her husband advised her before doing this to go to Weatherford and get the advice of her grandfather and grandmother. The bill shows clearly, and the jury could not have otherwise understood the matter, that she went to Weatherford for the sole and only purpose of getting their advice with reference to this matter; and that she did receive their advice, which was that they take up the matter at once with the officers of the law; and, that she followed this advice. In other words, the bill shows as clearly as it could, that the grandfather and grandmother advised her to have appellant prosecuted or at least to place the facts before the prosecuting officers for their action. In this connection it should be held in mind that appellant married the daughter of Mr. and Mrs. Browning. The record further shows that he was their nephew. He was, therefore, related to them by both blood and marriage. They must have known that the disclosure of the facts with reference to the abortion as detailed by Mrs. Kirby to the officers of the law would result, not only in the prosecution of appellant, but in the disgrace of his wife, their daughter. Evidently, therefore, having these things in mind, and assuming, as the jury must have, that they had proper regard for the welfare of the family, it is difficult to see how an intelligent jury could have escaped the conclusion that, since these old people were willing to advise that all the facts be placed at once before the officers of the law for their action, they, therefore, thought appellant guilty. Evidently if they had believed the facts to be as they were detailed by appellant and Mrs. Fondren they would have seen no occasion for having the matter placed before the county attorney. The facts as detailed by Mrs. Kirby tended to show appellant's guilt, according to the view of the majority, and, therefore, it seems clear that when these facts were detailed to them, and on them they advised that the matter be taken up with the county attorney, they believed appellant guilty. Therefore it is clear that in placing the advice of these old people before the jury the State also, by necessary inference, got before the jury their opinion that appellant was guilty.

"It should be held in mind that this involved a transaction that happened outside the presence of the defendant. We submit that the testimony was not only hearsay, and therefore not admissible, but was highly injurious and prejudicial in that the State was thus permitted to get before the jury the advice of these people with reference to appellant's guilt. As we understand the majority opinion, the position is taken that this testimony or conversation did not indicate the opinion of the grandfather and grandmother that appellant was guilty. We do not believe that this view of what the bill of exception shows is correct. Mrs. Kirby stated that she told them all that she had heard and seen in Fort Worth. Now, what she had heard and seen, at least as detailed by her, and under the law declared by the majority, pointed to the guilt of three persons and three persons only, namely: Dr. Link, Mrs. Fondren, and the appellant, the first two as principals and appellant as accomplice. The facts, from the standpoint of Mrs. Kirby, pointed to the guilt of no other person. One who, on the facts as detailed by her, advised placing the whole matter before the prosecuting officers, must have understood that if her story was believed by the officers, these three persons, or at least some of them and no other persons would be prosecuted. Therefore, it seems clear that when the grandfather and grandmother, after being told by Mrs. Kirby what she had seen and heard at Fort Worth, advised her to place the whole matter before the prosecuting officers they must have believed her story, and believing it, must have believed Dr. Link, Mrs. Fondren and appellant guilty, No jury could have understood otherwise. Evidently the jury would here reason to believe that, in advising that the facts be placed before the officers, the old people must have known that someone might be prosecuted, and since the facts, as detailed by Mrs. Fondren, implicated Dr. Link, Mrs. Fondren and appellant and no one else, that they, therefore, in effect, advised the prosecution of these three persons, and having advised their prosecution must have been of the opinion they were guilty.

"The rule is general that the State will not be allowed in any criminal prosecution to place before the jury opinions directly or indirectly expressed with reference to the defendant's guilt. In many cases this court has announced and applied this well settled doctrine, and in many of them the opinion was less directly expressed than it is here.

"In the Bennett case, 39 Tex.Crim. Rep., it was held to be error to prove by an officer that he had used every effort to ferret out the perpetrator of the offense; and thus, by inference, get before the jury the officer's opinion that the defendant was guilty. This presented a less direct expression of opinion than is presented in the case at bar.

"The case of Denton v. State, 46 Tex.Crim. Rep., is in point. In that case the State in rebuttal placed Mason Cleveland, county attorney of Johnson County, on the stand and proved by him that the prosecuting witness was brought to his office on two different days and that she first refused to disclose the facts of the case and later that she did disclose the facts and divulge the name of the defendant, and he made a report thereof to the county attorney of Hill County. We quote as follows:

"`The court explains the introduction of this testimony as follows: "That defendant on the cross-examination of the witness Pearl Thomas proved by her that she told of this act of intercourse with Denton to the county attorney of Johnson County, in Cleburne; that she first denied it. That on the second day they put her under oath, and she then admitted it; that she did not give defendant away until she was caught. In rebuttal the court permitted the State to place the county attorney for Johnson County on the stand and prove the facts stated in the bill. In this connection other testimony in the record showed that after the county attorney of Hill County received a phone message from Cleburne, attachments were issued for Pearl Thomas and her mother to appear before the grand jury of Hill County. All of this waspermitted to disprove the theory of the defense that theprosecution had been concocted out of a spirit of malice, and that Pearl Thomas voluntarily appeared before lawyers in Cleburne to institute prosecution; and that the jury was instructed that the testimony admitted could not be considered by the jury as any evidence of the guilt of the defendant." We can readily see that after appellant had proved by the witness Pearl Thomas, on cross-examination, the circumstances of the alleged rape, it would not injure appellant to prove the same circumstances by the witness Cleveland. But it does not occur to us that this authorized the State to prove by the witness Cleveland that he reported the matter to the county attorney of Hill County, and that he did so in order to have attachments issued for Pearl Thomas and her mother to appear before the grand jury of Hill County, so as to inaugurate and expedite the prosecution. This was an indirect way of getting before the jury the opinion of the county attorney of Johnson County as to the effect of the disclosures made by the witness Pearl Thomas to him. The fact that the court instructed the jury not to consider said testimony as any evidence of the guilt of defendant does not occur to us to have cured the vice of the admission of the testimony regarding the report of the county attorney of Johnson County to the county attorney of Hill County. If this testimony did not tend in some way to show the guilt of appellant, it is difficult to see how the jury could regard it for any purpose. And they would be liable to regard the fact that because, after Pearl Thomas disclosed to the county attorney of Johnson County the facts regarding the rape, he thereupon immediately instituted the prosecution through the county attorney of Hill County, that he believed the testimony of prosecutrix and it made out a case against appellant; that is, that such was his opinion, and it may have served to strengthen the evidence of the prosecutrix before the jury.'

"The case of Mercer v. State, 66 S.W. Rep., 555, also demonstrates that this testimony was inadmissible. In that case the State desired to show that one of its witnesses had acted in the capacity of a detective with reference to the prosecution involved. It appeared that this witness had gone into the `joint business' at Burleson for the purpose of detecting appellant and another party. Over the objection of the defendant the witness was permitted to state and did state, that he engaged in the `joint business' and was engaged as a detective by one Jim Ellis for the purpose of detecting parties suspected of crime in Burleson, including the defendant and one John McGee. The trial judge qualified the bill of exception by stating that the testimony was admitted for the purpose of showing the capacity in which the witness acted. This court held that while it was permissible to show that he acted in the capacity of a detective, still it was not permissible, in this connection, to show that he had been employed by Ellis to detect appellant, because this fact indicated the opinion of Ellis that appellant was guilty.

"From Campbell v. State, 30 Texas Crim. App., 645, we quote: `We are also of the opinion that the court erred in permitting the declarations, statements, and advice given by three parties, towit, his attorney, the district judge and the district attorney to the State's witness J.R. Hartman in regard to his testimony, these statements and advice being wholly irrelevant and not pertinent to the issues in the case. Such evidence was purely hearsay and calculated to prejudice the defendant in the minds of the jury by impressing upon them the opinion of the district judge and the district attorney as to the importance of his testimony, and the necessity that it should be concealed or withheld until the final trial of the defendant. McCracken v. State, 6 Texas Crim. App., 507; Chumley v. State, 20 Texas Crim. App., 547; Maines v. State, 23 Texas Crim. App., 568; Nalley v. State, 28 Texas Crim. App., 387.'

"And again it has been held in many cases that the State can not, in meeting some legitimate issue, incidentally place before the jury an opinion with reference to appellant's guilt. See Holloway v. State, 54 Tex.Crim. Rep.; Barbee v. State,50 Tex. Crim. 426; Denton v. State, supra; Mercer v. State, supra; Cogdell v. State, 43 Tex.Crim. Rep.; Morton v. State, 43 Tex.Crim. Rep.; Jenkins v. State, 43 Tex. Crim. 178; Watson v. State, 50 Tex.Crim. Rep.. All hold that such testimony indicating an opinion with reference to the defendant's guilt is not admissible.

"It is further well established that, when such testimony has been gotten before the jury the court can not cure the error in admitting the testimony by undertaking to limit it in his charge. See Denton v. State, supra; Mercer v. State, supra; Parker v. State, 46 Tex.Crim. Rep.; Cogdell v. State, supra.

"Nor does the fact that the prosecuting attorney stated that this testimony was not being introduced for the purpose of connecting the defendant with the offense, cure the error. We do not understand that a party can be allowed to get before the jury illegal and prejudicial testimony by merely stating that he does not intend to use it to establish his side of the case. The testimony indicated the advice of the aged people to have appellant prosecuted. By fair, if not necessary inference, it indicated their opinion that he was guilty. It was hearsay. No exception to the hearsay rule is pointed out justifying its admission, and the State was not entitled to get it before the jury by merely stating that it did not intend to use it to establish appellant's guilt.

"The testimony was further injurious and prejudicial in that it tended to bolster and sustain the story of the witness Pansy Kirby before the jury in an improper way. She testified that she told her grandfather and grandmother what she had heard and seen in Fort Worth with reference to this abortion, and they then advised her to go back home immediately and place all the facts before the assistant county attorney for his action. At that time they had not talked to any other member of the family. They had not heard Mrs. Fondren's version of the affair. They had not heard appellant's version. They knew nothing about it, except what was told them by Mrs. Kirby, and on this, without further consultation with any member of the family, they were advising that the affair be at once placed before the prosecuting officers. Evidently the jury must have concluded that, knowing the several members of the family, they had great confidence in the truth of the story detailed by Mrs. Kirby, for on her story alone they were willing to drag the whole family into court in connection with the commission of a disgraceful offense.

"As we have said before, this conversation between Mrs. Kirby and her grandfather and grandmother and their advice to her is conceded to be hearsay. The learned counsel representing the State point out no exception to the hearsay rule justifying the admission of this testimony. They merely say that it was proper, in rebuttal of the contention of appellant, to introduce this hearsay.

"In addition to being hearsay the testimony was, as we have shown, highly injurious and prejudicial.

"In this connection it should be recalled that the appellant has received the highest penalty of the law applicable to the offense with which he was charged. The facts set out in the majority opinion show that there was at least a sharp issue with reference to his guilt. The testimony introduced by him tended to show that he had absolutely no connection with the abortion. The admission of this conversation between Mrs. Kirby and the grandfather and grandmother must have worked actual injury to the rights of appellant. This being true and the testimony being hearsay, the judgment should be reversed.

"Second. We further submit that the trial court erred in allowing the State to prove that Mrs. Kirby told the county attorney the same story she told the jury and will now discuss that point.

"After detailing her conversation between her grandfather and grandmother and her return to Fort Worth, and the fact that she had made an appointment with the assistant county attorney, Mrs. Kirby was then allowed to state, over objection, that the assistant county attorney came to her residence and had a conversation with her with reference to the abortion. We will quote so much of the bill as is applicable to what we shall now discuss:

"`Mr. Wilson: Q. Did you phone me and talk to me? A. Yes, sir. I done like they told me. I told them "This is Pansy Kirby, J.R. Browning's granddaughter," and I told you I wanted you to come to my house, 1211 Gould Avenue. Q. Did you tell me what it was about? A. I told you I had some important news to tell you — I didn't tell you what it was. Q. When I got there it was on Sunday? A. Yes, sir. Q. Did you tell me what you have testified here? A. Yes, sir.'

"In this connection another bill of exception shows that while the witness James C. Wilson, assistant county attorney of Tarrant County, was on the stand he was allowed to testify with reference to this conversation with Mrs. Kirby as follows:

"`Mrs. _____, some lady, I didn't know who it was at the time, phoned me one Sunday, the Sunday morning this girl made this statement, I should judge about 8 o'clock, some time along there, I can not be certain. Anyhow, I told her I would come — I didn't really catch the name, I did catch the number, told me it was important, so having the number I went over there and finally found her, and then she told me who they were — I did catch, was the granddaughter of J.R. Browning over there, people I had known. SoMrs. Kirby told me what she had heard between Mrs. Fondren and the doctor just about as related here to the jury, and also the conversation she related occurring between herself and Mrs. Fondren on that Friday.' This testimony was admitted over appellant's objection that the same was hearsay and involved a transaction and conversation had outside the presence of defendant and which could not bind him.

"It should be recalled, in this connection, that no basis whatever had been laid for the introduction of this testimony undertaking to sustain Mrs. Kirby by proving that she had told the same story out of court that she was telling in court. The defendant had not, and did not at any time during the trial, introduce any of her statements made out of court contradictory to her testimony on the stand. It is true that the defendant introduced testimony tending to show that far a long time she and her husband had disliked him, and had for many years entertained ill-will toward him and had introduced the statements of her husband tending to show a desire for revenge. These matters are all fully set out in the majority opinion. As said in the majority opinion, appellant contended that the testimony of Daisy Moore was induced and inspired by Kirby and wife from their corrupt motive, hostility to and hatred of him, and their, or Mr. Kirby's threats, against him of vengeance. However, this ill-will and desire for revenge had existed for many years and existed atthe time these statements were made as well as at the time of thetrial. It is true the authorities cited in the majority opinion establish the rule that, where it is contended that a witness is testifying to a certain state of facts, and that his testimony has been influenced or induced by some corrupt motive, his statements made before the existence and operation of such a motive on his mind in harmony with his testimony on the trial are admissible to sustain him. These cases, however, hold, and the rule is general that a statement made by the witness after themotive to falsify exists is not admissible to sustain his testimony on the trial. Therefore, the authorities cited in the majority opinion, as well as many others, show that Mrs. Kirby's testimony and the testimony of the county attorney to the effect that she told him the same story of this affair that she was telling the jury was clearly inadmissible. Let it be conceded that, as shown by the majority opinion, appellant contended that Mrs. Kirby's activity and testimony was caused by her ill-will toward him and desire for revenge. If this is the motive that induced her to testify as she did, then this motive had existed for many years and existed at the time she talked with Wilson; and under well settled principles her statements made out of court at a time when the same motive to falsify existed, as at the time of the trial were not admissible to sustain her. See the cases cited in the majority opinion all announcing this rule, and also the following: Sanders v. State, 31 Tex. Crim. 525; Conway v. State, 33 Tex.Crim. Rep.; Anderson v. State, 50 Tex.Crim. Rep..

"Mr. Branch, in section 875 of his work, states the rule as follows: `Where the testimony of State's witness is impeached on the ground of corrupt influence or falsification, it is error to sustain the witness by proof of statements in harmony with his testimony made after the motive existed which would likely prompthim to testify falsely.'

"This well settled rule thus clearly stated demonstrates that Mrs. Kirby's testimony and the testimony of the witness Wilson that she had told the same story to him she had told the jury was not admissible. Moreover, the quotation made in the majority opinion from the case of Jones v. State, fully establishes that her testimony was not admissible, for in that case it is clearly recognized both in the original and in the opinion on rehearing that where the alleged statement is made at a time when the same motive to falsify existed that exists at the time of the trial, the statement is not admissible. This rule applies squarely to the testimony of Mrs. Kirby. She was influenced at the time she talked to the county attorney by exactly the same motives to make a false statement that were charged against her at the time of the trial.

"It may be that, under this record, and under the well settled rule discussed in the Jones case and other decisions referred to in the majority opinion on motion for rehearing, it was permissible for the State to prove that the prosecuting witness Daisy Moore had told the assistant county attorney, in a conference with him, the same story she was telling the jury. There can be no doubt that the rule laid down in Jones v. State, 38 Tex.Crim. Rep., and in Mitchell v. State, 36 Tex. Crim. 278, is a sound and well established rule. The only question that can arise is with reference to its application to this record. We submit (and will hereafter discuss this phase of the bills of exception) that the testimony that Daisy Moore told the county attorney the same story she told the jury was not admissible for the reason that two days before her conference with him Mrs. Kirby had gone to see her and had at least had an opportunity to talk with her with reference to the affair. In this connection it should be recalled that appellant contended that her testimony had been influenced improperly by the Kirbys. This being true and it appearing at the time that she made the statement to the county attorney she had already had a conference with Mrs. Kirby we do not believe his testimony with reference to what she told him was admissible. We will discuss this later. However, if this be a doubtful question on account of the state of record, it is undoubtedly true that, under this record, the testimony of Wilson and Mrs. Kirby to the effect that Mrs. Kirby had told him the same story she was telling the jury was not admissible. In fact, we believe that the very cases cited in the majority opinion establish conclusively that this testimony was not admissible.

"In the case of Jones v. State, 38 Tex.Crim. Rep., the appellant was prosecuted for murder. He contended that some years before the deceased had raped his wife. We quote: `The statement of facts presents but one issue and that, whether the appellant was guilty of murder in killing W.G. Veal or whether he was guilty of manslaughter. If the jury believed the testimony of Mrs. Jones and appellant the theory of appellant that it is nothing greater than manslaughter is clearly presented. If the jury did not believe the testimony of appellant and Mrs. Jones, then manslaughter so far as the jury is concerned is not in the case. The State's theory is that the killing was not prompted by the passion aroused by this misconduct of Veal towards Mrs. Jones, wife of appellant, but that her testimony was manufactured to aid her husband in his defense.' In other words, the State contended in that case that the story of Mrs. Jones on the witness stand that some years before the deceased, Veal, had raped her was a fabrication invented to save the life or liberty of her husband. In this state of the record and in view of this contention of the State this court held it proper for the defendant to introduce testimony that before the defendant had killed deceased, Mrs. Jones had told the same story with reference to being raped by the deceased that she had told at the trial. This declaration was admitted for the reason that at the time the same was made she could not have been influenced by the motive to falsify charged against her at the time of the trial.

"Again in the case of Mitchell v. State, referred to in the majority opinion, the same ruling was made. In that case it having been contended that a given witness had testified falsely in order to secure the dismissal of a case pending against him it was held proper to introduce his statements in harmony with his testimony made before his case was dismissed.

"The same is true of Akin v. State, 56 Tex.Crim. Rep., referred to by the majority. In that case it having been contended by the State that the testimony of defendant's wife with reference to deceased insulting her was a fabrication to save her husband, it was held admissible for the defendant to show that before the homicide she had made statements with reference to the matter in harmony with her testimony at this trial.

"See also Wigmore on Evidence, section 1128, where the learned writer correctly states the general rule, stressing the idea that the statement must be made at a time prior to the existence of the fact indicating bias, interest, or corruption.

"Now in this case at the time Mrs. Kirby had her conference with the county attorney the crime charged against defendant had been committed. Mrs. Kirby then knew all about the circumstances surrounding its commission that she knew at the time of the trial. Her conference with the county attorney in which, according to her testimony and to his testimony, she told him the same story she had told the jury, was a week after the alleged crime was committed. It was two days after Mrs. Kirby had her last conversation with appellant, according to her testimony. At that time, and years before, according to appellant's contention, Mrs. Kirby and her `husband had been very hostile toward him. He had opposed their marriage and when, after having separated, they attempted to go back together he bitterly opposed that step. Her husband had expressed, according to appellant's witnesses, a desire for revenge on appellant. It was the theory of appellant that actuated by this long continued hostility and feeling and desire for revenge the Kirbys had instigated this prosecution against him. Now, this being true and this charge having been laid at the door of the Kirbys, was it permissible for Mrs. Kirby to introduce, in support of her testimony, her declarations made out of court in harmony with her testimony on the trial, at a time when the same motive to falsify existed? Clearly not. At the time she talked to the county attorney she was influenced by the same motives and influences to testify falsely against appellant that could have influenced her at the time of the trial. If appellant had committed any crime it had been committed some time before her conference with the county attorney, and if her testimony against him was influenced or induced by her hostility and desire for revenge, then her story to the county attorney was influenced and induced by the same motives or causes. Therefore, under the rule laid down in the above cited cases, this testimony was not admissible. The rule is settled that, it is never proper, in support of a witness who is charged with having testified under some corrupt motive or influence, to introduce the statements of the witness made out of court at a time when the same alleged corrupt motive or influence existed. This is recognized in all the cases cited in the majority opinion, and is expressly declared in the Sanders case and in the Conway case, above referred to. See decision by Judge Hurt in last mentioned case.

"The question now arises, was the admission of this testimony injurious to appellant? In determining this it should be recalled that the State's case rested, as stated in the majority opinion, on the testimony of Daisy Moore and Pansy Kirby. Mrs. Kirby testified to the agreement between Mrs. Fondren and the doctor to have the abortion produced. She further testified to two conversations with appellant after the abortion had been produced. In both of these conversations, as detailed by her, he indicated a guilty knowledge of and a guilty connection with the affair. In the second conversation and the one with reference to which Mr. Wilson was allowed to testify that Mrs. Kirby told him the same thing she told the jury, appellant, according to Mrs. Kirby, practically confessed to her that he had been having illicit intercourse with Daisy Moore. She charged him with this fact and he not only did not deny it, but told her that it was none of her `darned business.' The whole conversation is set out in the majority opinion, and clearly was one of the most incriminating circumstances introduced against appellant. He denied both of these conversations. They are attested by no witness other than Mrs. Kirby. He further explains himself, and through his other witnesses, in a satisfactory way, his presence in Fort Worth as having nothing whatever to do with the abortion, and the testimony of Mrs. Kirby was the only testimony tending to show that his presence in Fort Worth had any connection with the crime. Therefore it is clear that the error of the court in permitting the State to prove that Mrs. Kirby had told the county attorney the same story she told the jury was highly prejudicial. Further discussion of this point, we believe, is unnecessary. It is clear to us that, under this record, and the authorities cited in the majority opinion and cited by us, reversible error was committed in admitting this testimony.

"Third. We next refer to the testimony of the witness James Wilson with reference to his first conversation with the prosecuting witness Daisy Moore. We do not deem it necessary, however, to discuss this part of the bill of exception at length. The majority has determined that since the defendant contended that the testimony of Daisy Moore was false and was inspired and influenced by Mrs. Kirby and her husband, and that they in turn were moved and actuated by their long continued hostility to appellant, it was permissible for the State to show that before the operation of the influence of the Kirbys Daisy Moore had told a story to the county attorney similar to that detailed to the jury. Authorities are cited in the majority opinion holding that, where the testimony of a witness is assailed and it is asserted that the same is false and the result of some corrupt motive or influence, statements of the witness made out of court at a time before the existence of such influence are admissible to sustain him. This was the holding in Jones v. State, which is quoted from at length in the majority opinion. With that holding we have no disagreement. Applying the rules laid down in that case and the other cases referred to it is clear to us that the testimony of Mrs. Kirby, which we have before discussed, was not admissible.

"Now with reference to the witness Daisy Moore, the record does not show that the statement made by her to the county attorney was made before the existence of the influence of the Kirbys over her. The record shows, and it is recited in one of these bills of exception, that on Friday before the county attorney had this conversation with Daisy Moore, Mrs. Kirby had gone over to see her at the home of a Mrs. Chancelor. What occurred between her and Mrs. Kirby on this occasion is not shown. Her statement to the county attorney was made two days after this conference with Mrs. Kirby, and, therefore, it can not be said that the statement was made before the Kirbys had had an opportunity to influence her with reference to her testimony. On the contrary the record shows, as above stated, that her conference with the county attorney was two days after Mrs. Kirby had had a conference with her. We, therefore, submit that under these circumstances the testimony of the assistant county attorney, in effect, that she told him the story that she had told the jury was not admissible, for it was not shown to be a statement made at a time before she could have been influenced by the Kirbys. The appellant contended that her testimony was caused and induced by the influence of the Kirbys. This being true her statements in harmony with her testimony on the trial made at a time before she could have been influenced by the Kirbys with reference to her story would have been admissible. But the statement made to the county attorney does not come within this class, and, therefore, the rule laid down in Jones v. State does not apply. See Sanders v. State, 31 Tex.Crim. Rep.; Conway v. State, 33 Tex. Crim. 327; Anderson v. State, 50 Tex.Crim. Rep.; Millsaps v. State, 42 S.W. Rep., 991.

"However, even if there should be any doubt with reference to the admissibility of the testimony of the county attorney with reference to his conversation with the witness Daisy Moore it is clear that the testimony of Mrs. Kirby with reference to the conversation between herself and her grandfather and grandmother, and between herself and the county attorney, and the testimony of that official with reference to his conversation with her was not admissible. And the error of the court with reference to this testimony being clearly reversible, we do not feel it necessary to discuss the testimony to the witness Wilson with reference to his conversation with Daisy Moore at length. The other bills clearly disclose reversible error.

"The instruction of the court limiting all of this testimony to use for a particular purpose was wholly unavailing. See Denton and Mercer cases hereinbefore discussed. The testimony of Mrs. Kirby with reference to her conversation with her grandfather and grandmother and their advice to take up the matter with the officers was not admissible for any purpose, but was irrelevant to any issue in the case; it shed no light whatever on the issue with reference to the guilt of appellant; it merely informed the jury that the grandfather and grandmother had advised his prosecution. This fact was not only immaterial, but could under no view of the record have become material. We do not understand how the fact that some person had advised this prosecution could under any possible state of the record have become admissible against the defendant. Again, the testimony of Mrs. Kirby and that of the witness Wilson with reference to a conversation with him was wholly inadmissible for any purpose as we believe we have shown, and being admissible for no purpose it could not be properly limited to any particular purpose. The fact that Mrs. Kirby told consistent stories about the affair did not in anywise tend to show that she instituted the prosecution in good faith or that in her activity against appellant she was not actuated by ill-will or revenge. In fact, if she was actuated by these motives it is more than likely that her statements being preconceived and the result of deliberation would be consistent. It was perfectly proper for the State to introduce testimony tending to show the fact, if it was a fact, that Mrs. Kirby and her husband had not talked to the witness Daisy Moore with reference to her testimony. The State might have also shown on this issue that the Kirbys were not unfriendly toward appellant. They might have further proven by the county attorney that he instituted the prosecution independently of any statement made to him by the Kirbys. But on this issue it was not permissible for the State to prove that Mrs. Kirby had told consistent stories with reference to the affair. This did not tend in anywise to exculpate her from the charge laid at her door by appellant.

"We therefore submit that the trial court allowed the State entirely too much scope in meeting this issue. Even if appellant did charge the Kirbys with instigating this prosecution and with influencing the prosecuting witness Daisy Moore, they were not entitled to exculpate themselves from the charge by the use of hearsay testimony any more than appellant was entitled, with hearsay, to exculpate himself from the charge in the indictment. The court should have confined the Kirbys, in meeting the charge made against them by appellant, to the use of proper and legitimate testimony. They were not entitled to undertake to meet this charge with hearsay.

"Fourth. Aside from the matters before discussed, appellant has brought forward and again presented in his motion for rehearing all the questions originally presented in his motion for new trial in the lower court. There is one of these matters that we believe discloses reversible error and will briefly discuss.

"The tenth, eleventh, twelfth, thirteenth and fourteenth assignments of error assign error on the action of the trial court in permitting the State, over objection of defendant, to prove by various witnesses the general reputation of the prosecuting witness, Daisy Moore, in the community where she lived with reference to being a moral, chaste and pure girl. It is held by the majority that this testimony was admissible upon the ground that appellant in making out his defense had assailed the virtue and chastity of the prosecuting witness. It is true that appellant's wife testified that her daughter Daisy had told her at the time she told her of her state of pregnancy that she had had intercourse with several and did not know who was responsible for her condition. It is true also that in this connection various members of the family testified to her staying out late at night. No evidence was introduced, however, to the effect that her general reputation for virtue, chastity or morality was bad and no question to that effect was asked. In fact, appellant himself testified, on cross-examination, that her reputation was good in these respects and that he had always considered her a pure and moral girl. Appellant objected to the admission of this testimony on the ground that he had made no effort whatever to assail her reputation in the respects inquired about, and that the same had been in nowise put in issue.

"In this connection it should be recalled that the State contended that appellant and appellant alone was responsible for the ruin of Daisy Moore. The State introduced testimony to this effect as tending to show motive on the part of appellant for the abortion. Appellant denied not only having anything to do with the abortion, but also denied the motive, namely: denied having had intercourse at any time with the prosecuting witness. To meet this issue and to disprove the contention of the State that he was responsible for the pregnancy of the witness Daisy Moore, appellant introduced the testimony of his wife that Daisy Moore had stated to her that she had had intercourse with several persons. This testimony also served to contradict and traverse the testimony of Daisy Moore that she had had intercourse with no person other than appellant. This was purely defensive testimony and the mere fact that it incidentally tended to show that the witness Daisy Moore was unchaste and not virtuous did not authorize the introduction of testimony of her general reputation in rebuttal. We quote the following from Gregory v. State, 94 S.W. Rep., 1043:

"`We understand the doctrine now to be established, before evidence of general reputation as to some characteristic of a deceased person can be offered by the State, this matter must be first put in issue by the defendant by offering testimony of that reputation. It is not sufficient merely that because of the defendant's testimony concerning the homicide some characteristic of deceased may be brought out or made to appear. In this case appellant offered positive testimony to the effect that deceased had debauched the wife of appellant, which would indicate that he was not a person of good character for virtue. But this did not justify the State, in order to meet this, to resort to evidence of the general reputation of deceased as to virtue and chastity. The State could not thus meet this proof by positive evidence with proof of general reputation, and would be only authorized to introduce evidence of general reputation of the deceased in the respect offered, when appellant himself had first assailed the State's case by proof of deceased's general reputation. Graves v. State, 14 Texas Crim. App., 113; McCandless v. State, 57 S.W. Rep., 672, 42 Tex.Crim. Rep.; Kennedy v. State (Ala.), 37 So. Rep., 90.'

"Other authorities might be cited, but is deemed unnecessary. Appellant was entitled to traverse the testimony of the State that he and he alone had had intercourse with the witness Daisy Moore. He was also entitled to traverse the testimony of the State that he and he alone was responsible for her pregnancy. The mere fact that his defensive testimony on these issues tended to show that she was unchaste and not virtuous did not authorize introduction of testimony on the part of the State that her general reputation for these characteristics was good.

"We think this case comes squarely within the rules discussed in the Gregory case. See also Wakefield v. State, 50 Tex. Crim. 124, 94 S.W. Rep., 1046; Welch v. State, 50 Tex. Crim. 28, 95 S.W. Rep., 1035; Richardson v. State, 44 Tex. Crim. 211, 70 S.W. Rep., 320.

"We note the reference in the majority opinion to the case of Bullock v. State, 73 Tex.Crim. Rep., 156 S.W. Rep., 196. We do not understand that that case necessarily involved any question similar to the one here presented. There may be language in the opinion broad enough to render this testimony admissible, but we do not believe that it was necessarily called for by the facts before the court and that the force of the decision should be confined to the facts and issues before the court."