Appellant has filed a motion for rehearing in which one of his principal contentions is that we erred in holding that there was no error in permitting the State to support its witness Weaver by introducing the testimony of the witness at the examining trial. The witness Weaver had testified to material facts for the State, when on cross-examination the witness was asked by defendant if, since the former trial in this case, he had not said to Mr. Aldredge, in the town of Bovina in a restaurant, that he would tell enough against defendant at the next trial to break his neck; that the Williams boys had put in a dray line in opposition to witness Weaver and were mad at him for testifying as a witness. Weaver admitted that appellant had put in a dray line, but denied emphatically making any such statement. Defendant then introduced Aldredge, who testified Weaver did make such statement. Now, what was the object and purpose of this examination and this testimony? It was to prove that since the former trial Weaver had gotten mad at appellant, would change his testimony and swear to matters on the trial not testified to on the former trial — that his testimony on this trial was a pure fabrication. Appellant could have had no other object and purpose. Appellant cites us to a number of authorities, but none of them are in point. If he had attempted to impeach the witness by proving that his reputation for truth and veracity was bad, of course, his former testimony would be inadmissible to support him, because his reputation would have been the same when he gave the former testimony, and to prove that he had made the same statement on a former occasion would add no verity to it. But this is not that character of question, but the effort made was to prove that the testimony was a fabrication pure and simple, and in that kind of instance the testimony of the witness, given at a time when such motives did not exist are admissible. In the case of Jones v. The State, 38 Tex.Crim. Rep., Judge Davidson, in speaking for the court, said: *Page 304 "All the authorities agree where an attack is made that the witness is prompted by improper motives, or has recently fabricated the story, that under either of these contingencies the party introducing his witness can prove his witness stated the same facts prior to the time when the motive could have existed, or prior to the occasion or circumstances prompting the manufacturing of the testimony." And adds: "We have repeatedly written upon this subject, laying down substantially the same rules that we here state, and deem it unnecessary to even cite authorities," but does cite 1 Whart. on Ev., 2d ed., art. 570, and long list of cases there cited.
In Reddick v. The State, 35 Tex.Crim. Rep., Judge Hurt said: "If the defendant attempts to prove that her testimony has been recently fabricated, the State would have the right to show that she stated, soon after the transaction, the same facts. If the defendant attempts to show that improper influences have been brought to bear upon the witness, the State would have the right to prove that before the influences were applied, she told the same tale as she swears to now on the trial," citing authorities. And in English v. The State, 34 Tex.Crim. Rep., Judge Hurt, in speaking for the court, said: "Appellant complains of testimony to the effect that the witness gave on the night of the homicide a similar version of the facts attending same, as sworn to by him on the trial. Appellant, before this, had made an attack upon him by trying to prove that his evidence was recently fabricated. Under this state of case, the State had the right to sustain her witness by proving that just after the homicide her witness made the same statement in substance as that sworn to on the trial, and by this means disprove that his testimony was recently fabricated." For other decisions so holding see Ballow v. The State, 42 Tex.Crim. Rep.; Keith v. The State, 44 S.W. Rep., 849; Mitchell v. The State, 36 Tex.Crim. Rep., and authorities cited in these cases. And see Underhill on Crim. Ev., sec. 241, and cases there cited.
The next criticism is that the court erred in permitting witness McDonald to testify as to where appellant's wife was when the shooting took place, on the ground that it was requiring the wife to be a witness against her husband, and that it was the act of a third party for which the defendant was not responsible. We do not question the correctness of those decisions that hold that the wife can not be introduced as a witness against her husband nor compelled to testify against him. This is statutory in this State. The statute reads that the husband and wife shall in no case testify against each other except for an offense committed by one against the other. In this case the State did not offer the wife as a witness and she was not called on to give any testimony. But when the State showed that defendant at the time of the first altercation with deceased rode rapidly to his home, went in the home in search of his gun, was informed that the gun was at a neighbor's; that his brother came up *Page 305 and a conversation was engaged in, his wife being present; that his brother rode direct to the place where deceased was and a difficulty ensued; that after getting this gun he rode to the place where his brother and deceased were engaged in a fight and fired and killed deceased, the acts and conduct of all three of the parties would be admissible, if such acts tended to show whether the homicide was a preconceived killing, and the fact that one of the parties was his wife and the other his brother would not prevent the acts and conduct of either from being admissible. It is not "permitting the wife" to testify against the husband. (Smith v. The State, 48 Tex.Crim. Rep.-241.)
The next objection is that we erred in holding there was no error in permitting it to be shown that many of the cattle held by appellant at the time of the first altercation were subsequently watered at the tank. It is shown the whole trouble between appellant and deceased grew out of matters connected with the syndicate ranch, and appellant was holding the cattle next to the fence near where the gate was that led to the tank, and after appellant and deceased had the first words and deceased left to go to the depot and appellant to go and get his gun, these cattle which were being held there by him, were carried in this gate and watered, all knowing that deceased, manager of the ranch, objected thereto. This subsequent act tended to show why they had been driven to this point and were being held there, and threw light on the causes leading up and incident to the fatal difficulty, and the rule of law is that all facts and circumstances, which originate with the person on trial, may be proven if they shed light on the causes leading up to the difficulty, acts and conduct tending to show malice, etc. Underhill on Crim. Ev., sec. 323, and authorities there cited.
All the other questions raised were so fully discussed in the original opinion, we do not deem it necessary to again allude to them, as they relate to the charges which are copied in the original opinion and there discussed at length.
The motion for rehearing is overruled.
Overruled.