When the original opinion was handed down by Presiding Judge Prendergast I dissented upon three propositions. On rehearing Judge Harper changed his view in regard to one of them, maintaining the correctness of the original opinion as to the other two propositions. I concur, with Judge Harper in reversing upon the ground stated in his opinion. I disagree with him on the other two propositions, as I did in the original opinion. I am led to believe from reading Judge Harper's opinion that he has decided the question with reference to the erasure of the name on the hotel register from a misconception of the bill of exceptions, and has placed his opinion upon a ground not urged and not presented. Presiding Judge *Page 609 Prendergast's opinion sets out the bill of exceptions in full. I do not care to repeat it. An inspection of that bill shows that White was introduced by the State and testified that appellant registered at his hotel the night prior to the homicide under the name of Mrs. C.C. Everts. There was no objection to this testimony. It was admitted to be true. The hotel register was offered to prove that that name had been subsequently erased. Objections were urged to its admission. It was also shown in the bill that prior to the erasure of the name State's counsel had had the register photographed and used this photographic copy as evidence. Appellant urged no objection to that evidence. It was a photographic copy before the erasure occurred. Judge Harper, as I understand his opinion, holds the erasure was legitimate, and that the introduction of the register showing that fact was the best evidence. Appellant objected to its introduction for various reasons, but not that the register was the best evidence. The register was not offered to show the original entry or that appellant wrote the name Everts on the book. It was offered and admitted to show the original entry had been erased. It was not permissible under the bill to introduce evidence to show the erasure. It was admitted by Mr. Higgins, State's counsel, that appellant could not be connected with that erasure. The book was offered only for the purpose of showing the erasure. Appellant was in jail at the time of the erasure on a charge of having killed the deceased. Counsel for appellant at no time insisted that the register should be introduced for any purpose. They were urging it should not be, because it showed the erasure of the name, and appellant did not urge it was the best evidence to prove anything, but insisted it was not. As before stated, the State proved without objection the fact that the name had been registered. Appellant admitted she had so registered. Photographic copies so showed. If appellant had insisted that the register was the best evidence of the fact that Mrs. C.C. Everts had so registered, it might have been some excuse for Judge Harper's statements that it was the best evidence, but no such objection was urged and no such question raised. The rule of the best evidence is only urged when secondary evidence is offered. The register, whether or not tampered with, could not be any evidence of the fact that Mrs. Everts (appellant) under the name of Mrs. Everts, wrote that name. The register could only show the mere fact that the name "Mrs. C.C. Everts" was written on the register. The register could not prove or tend to prove that appellant placed it there. That must be done by other testimony showing that she wrote the name. White testified to this without objection. The best evidence of the fact was that to come from those who saw her write the name. Her admission could be used to prove it also. The register could not prove that she wrote the name.
The court should have sustained appellant's objections, especially in view of the statement of Mr. Higgins, who prosecuted for the State, that appellant had nothing to do with the erasure and could not be connected with it. When that statement was made all objections should *Page 610 have been sustained. The evidence ought not to have gone to the jury at any time. Mr. Higgins made a second admission of error. After the evidence had been before the jury for some time, until the following day it seems, he asked its withdrawal because of its inadmissibility. Upon this last statement the court withdrew the testimony from the jury. Presiding Judge Prendergast says if this was error it was harmless. Fabrication or destruction of testimony of a criminative nature is not and can not be harmless. The erasure, if by appellant, strengthens the State's case; if not by her or her connivance, it was materially damaging. Under all the authorities this testimony was so clearly inadmissible it is not subject to debate. For collation of authorities see Branch's Crim. Law, sec. 862. He thus states the proposition: "Defendant is not bound by, and it is error to prove the efforts of his friends, relatives or attorneys to induce a witness to leave, or suppress or manufacture testimony, or compromise the case, unless it be shown that defendant was connected with or authorized the efforts to tamper with the witness." Then follows a great number of cases. It is further laid down as the rule, that "where the proof of tampering with the witness would not be admissible as original evidence, it is also inadmissible for impeachment, and error in admitting it is not cured by limiting it to impeachment." I do not care to follow this further.
With reference to the witness Lockwood, I think my brethren are in error. In substance, it is shown Lockwood was introduced as a witness for the defendant. On cross-examination the State, among other things, asked him if he told anybody what he knew of the case. He stated that he had mentioned the matter to Mr. Payne, his attorney in another case. Payne was also one of appellant's attorneys. Without going into details as to how the conversation between Lockwood and Mr. Payne occurred, suffice it to say that he testified to this conversation only at the instance of the State on cross-examination. The State was further permitted to prove by this witness that he, witness, had not gone to Mr. Higgins, counsel for the State, and told him what he knew of the facts. The same attorney was permitted further to draw from the witness the fact that he had not gone around over the county and told the people generally about the matter. Without further detail, the witness was required to testify that he had not told anybody about his knowledge of the facts of the case, except Mr. Payne. Presiding Judge Prendergast and Judge Harper seem to think that this is admissible on the question of bias and motive. I do not care to discuss this matter. The whole matter was adjudicated after thorough consideration in Roberts v. State, 70 Tex. Crim. 297, 156 S.W. Rep., 651. The cases and the questions are so very similar it is sufficient to refer to that as being a late case on that question by this court. It is directly in point, and covers the question. The Roberts opinion is in line with and cites other authorities. Why this should be used to discredit the witness is not apparent, and is not supported by any cases called to my attention. Bias is but a mode of discrediting the witness.
In closing, I wish to say I concur in reversing the case on the ground *Page 611 stated by Judge Harper, and under all the authorities that have been called to my attention the case should have been reversed on the other two propositions above discussed.
I therefore concur in the reversal of the judgment, but dissent from the views of the majority holding that the other two questions were not erroneous.