In his motion for rehearing it is forcibly urged by appellant that we erred in our original opinion in holding that bill of exception number seven presented no error.
The bill reflects the following occurrence. Appellant had testified that he shot deceased in self-defense, and after he had fallen appellant picked up near deceased's body a large dirk, which was the knife exhibited to the jury. The State then proved by some of the grand jurors that while appellant was testifying before the grand jury he was asked whether or not he had seen a knife, gun or other weapon at the time of the killing, and appellant had replied that he had not. After this impeaching evidence was in appellant offered to prove by the witness Orr that appellant had told said witness that he had picked up a knife, and had it in his possession and would show it to Orr sometime. At the time appellant made said purported statement to Orr appellant had been charged by complaint with murder and had been released on bond. Under these circumstances the trial court excluded Orr's proffered testimony.
There is no uniformity in the holdings of the courts of different jurisdictions in regard to permitting a witness to be supported by statements consistent with his evidence on the trial where he had been impeached by proof of statements inconsistent with the evidence given by said witness. In some jurisdictions the supporting statement is excluded altogether; in others, proof of the supporting statement is admitted if made at a time prior to the inconsistent statement. See 70 Cow. C., Sec. 1136, with collation of authorities from many courts.
In our own State the holding on the subject has been consistent from the beginning, the only variance occurring sometime in the application of the rule in a particular case. The *Page 553 rule itself as adopted by this Court is very clearly stated by Mr. Branch in his valuable Ann. Texas P. C., in Sec. 181, page 110, as follows, relating to the State's witnesses. "Where aState's witness is attempted to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the present trial, it is not error to permit the State to support the witness by showing that shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial." In the same section on page 111 the rule is stated as it applies to the defendant's witnesses, and reads as follows: "Where defendant or hiswitness has been impeached or sought to be impeached by proof of contradictory statements, it is error to refuse to permit defendant to sustain his own testimony or that of his witness by proof of statements similar to those testified to on the trial which were made shortly after the transaction and before any motive or inducement existed to fabricate." Many cases are cited supporting the rule in both instances.
In applying the principle where a defendant is the witness it must be remembered that this Court is committed to the proposition that when a defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be cross examined, contradicted, impeached and sustained, the same as any other witness, unless there be some statutory limitation. Branch's Ann. Texas P. C., Sec. 147, 45 Tex. Jur., Sec. 309.
The reason why a supporting statement made by a witness after a motive to fabricate has arisen is held inadmissible is that to permit its use would be obnoxious to the "general rule that a party cannot make evidence for himself, either by his acts or his declarations." Shrivers v. State, 7 Texas Cr. App. 450.
Appellant relies largely upon Hudson v. State, 49 Tex. Crim. 24,90 S.W. 177, in support of his position that Orr's testimony was admissible. Exactly the same reliance on the Hudson case was had in Blackburn v. State, 78 Tex.Crim. R.,180 S.W. 268. After reference to the Hudson case the opinion in Blackburn's case proceeds as follows: "It has always been the rule in this State that when the State seeks to impeach a witness by proof of contradictory statements, he may support his testimony by showing that he had made similar statements to that he testified to on the trial. This is not only the rule announced in the Hudson case, supra, but it has been *Page 554 so held in Williams v. State, 24 Texas App. 666, 7 S.W. 333; Craig v. State, 30 Texas App. 619, 18 S.W. 297, Campbell v. State, 35 Tex.Crim. R., 32 S.W. 774; Pitts v. State,60 Tex. Crim. 524, 132 S.W. 801, and cases cited in Branch's Crim. Law, 874. But the rule is equally well settled in this State that proof of statements made in harmony with his testimony made after the motive existed which would likely prompt him to testify falsely cannot be introduced to support his testimony on the trial. Conway v. State, 33 Tex. Crim. 330,26 S.W. 401; Sanders v. State, 31 Tex.Crim. R.;21 S.W. 258; Anderson v. State, 50 Tex.Crim. R., 95 S.W. 1037; Porter v. State, 50 S.W. 380. * * * In the Hudson case it is not made to appear that it was after Hudson had been charged with an offense that he made the statement held to be admissible, and if it did so appear it would not be in harmony with a long list of authorities in this State, and as announced in 7 Ency. of Ev. p. 286. See also, Barkly v. Copeland, 74 Cal. 1,15 P. 307, 5 Am. St. Rep. 413; McCord v. State,83 Ga. 521, 10 S.E. 437; Waller v. People, 209 Ill. 284, 70 N.E. 681; State v. Vincent, 24 Iowa 570, 95 Am. Dec., 753; State v. Hendricks 32 Kan. 559, 4 P. 1050; State v. Fontenot, 48 La. Ann. 283, 19 So. 113; Commonwealth v. Jenkins, 10 Gray (Mass) 485; People v. Finnegan, 1 Parker Cr. R. (N.Y.) 147; State v. Exum, 138 N.C. 599, 50 S.E. 283; Commonwealth v. Brown, 23 Pa. Super. 470; State v. McDaniel, 68 S.C. 304,47 S.E. 384, 102 Am. St. Rep. 661; Legere v. State, 111 Tenn. 568,77 S.W. 1059, 102 Am. State. Rep. 781."
It is worthy of note that Judge Davidson, who wrote in Hudson's case, was still upon the court when the opinion in Blackburn's case was written, and apparently acceded to the statement that the Hudson case was out of harmony with the cases mentioned in the Blackburn opinion unless given the construction therein indicated.
In addition to the authorities cited in our original opinion and those collated in the opinion in Blackburn's case we cite the following upon the general rule that the supporting statement sought to be introduced in evidence must have been made before there was any motive on the part of the witness to fabricate. Ballow v. State, 42 Tex.Crim. R., 58 S.W. 1023; Browney v. State, 128 Tex.Crim. R., 79 S.W.2d 311; Williams v. State, 120 Tex.Crim. R., 49 S.W.2d 772; Bryan v. State, 121 Tex.Crim. R., 50 S.W.2d 298; Taylor v. State, 87 Tex.Crim. R., 221 S.W. 611; Naugle v. State, 118 Tex.Crim. R., 40 S.W.2d 92; Stoker v. *Page 555 State, 118 Tex.Crim. R., 42 S.W.2d 72. It will be observed from examination of the authorities that the rule excluding the proof of supporting statements of a witness who has been impeached by proof of contradictory statements has consistently been applied regardless of whether the witness be a State's or an accused's witness. In other words, the rule of evidence is, and should be, the same whether it aids or harms the State or the accused.
We take it that after an accused has been charged by complaint with a crime and been released on bond, as was appellant in the present case, it would not be debatable that a motive existed which would prompt him to make statements favorable to his defense against the accusation. That one so charged with the commission of an offense becomes a witness in his own behalf upon the trial should not change the rule of evidence regarding contradictory or supporting statements. There is no statutory limitation regarding such evidence. If appellant should be here permitted to introduce in evidence the statement claimed to have been made to Orr for the purpose of supporting appellant's evidence on the trial after the State had proven the contradictory statement we would have one rule of evidence applying to witnesses for the State and another rule of evidence applying to witnesses for a defendant, or to a defendant when he becomes a witness for himself.
Such a condition would be most confusing, highly undesirable and improper.
For the reasons stated we adhere to the views expressed in our original opinion. The appellant's motion for rehearing is overruled.