Romero v. State , 56 Tex. Crim. 435 ( 1909 )

This case was reversed and remanded on a former day of this term, and now comes before us on motion for rehearing by the State.

The case was reversed on bill of exceptions No. 4, wherein the county attorney asked the witness George Kline the following question: "Did you make the same statement to others out of court that you now make on the stand?" We held this testimony was inadmissible, citing the case of Williams v. State, 24 Texas Crim. App., 637. We were in error in this decision, since it is always admissible for a witness to testify that he had made statements in consonance with his testimony on the stand where the defense or converse party had proven that he had made different statements from those being testified to. Were we have the witness admitting that he had told the defendant's counsel a different account of the sale of whisky in this case from that testified on the trial. The witness admits the fact that he had. Now then, the State, to strengthen his testimony, asked him if he had not told other parties about the transaction in effect the same as he was testifying to. He answered that he had. This was legitimate cross-examination of the witness, and we were in error in holding that it was inadmissible. We accordingly grant the State's motion for rehearing, and the judgment is now affirmed.

Affirmed.