Reviewing the record in the light of the motion for rehearing, I am concurring with Judge Harper in reversing the judgment. I do not purpose to enter into a lengthy discussion of the facts; they are sufficiently set out in the opinion written by our Presiding Judge and Judge Harper. The letter, under discussion in those opinions, in my judgment, was not admissible either as original or impeaching evidence. The State was fully aware of the fact when they placed Cassie Dunn on the stand as a witness that she would not testify that appellant had intercourse with her, or was the father of her child, but that she would testify that Henry Dollins was the child's father. Before the grand jury she refused positively to name the author of her shame, but some time before the trial of the case she had informed the prosecution of the fact that she would not testify to her uncle's guilt but would testify that a man by the name of Dollins was the father of her child. This was communicated by Cassie Dunn to the State some time before she was placed on the witness stand. So any question of surprise was eliminated. She had not misled the State in any way, therefore they were not only not expecting her to testify that appellant was the father of her child but knew she would not. This is not a case like Blake v. State, 38 Tex. Crim. 377, where the witness had sworn to a state of facts and subsequently testified contrary to those former statements. Judge Hurt in that opinion held that the party placing the witness on the stand has the right to expect him to testify as formerly, but the facts in this case are different. This witness had not testified to her uncle's guilt, or at least of the fact that he was the father of her child, and had informed the State she would not so testify, yet in the face of this she was placed upon the stand as a witness and testified that Dollins was the father of her child. It is a settled rule that where a prosecuting witness does not testify as expected, the State can not prove its case by showing as original testimony statements of the witness made outside of court contradictory of those testified on the trial. Dunigan v. State, 38 Tex.Crim. Rep.. For collation of authorities see Rose's Notes, vol. 5, p. 1207; Goss v. State,57 Tex. Crim. 557; Harris v. State, 68 Tex.Crim. Rep.. It is a well settled rule that failure to make proof is not sufficient as a predicate for impeachment. Largin v. State, 37 Texas *Page 516 Crim. Rep., 574; Bennett v. State, 24 Texas Crim. App., 73; Smith v. State, 45 Tex.Crim. Rep.; Scott v. State,52 Tex. Crim. 164; Wells v. State, 43 Tex.Crim. Rep.; Owens v. State, 46 Tex.Crim. Rep.; Hanna v. State, 46 Tex. Crim. 5; Skeen v. State, 51 Tex.Crim. Rep.; Quinn v. State, 51 Tex.Crim. Rep.; Shackelford v. State, 27 S.W. Rep., 8; Finn v. State, 47 S.W. Rep., 1015; Knight v. State, 65 S.W. Rep., 88; Goss v. State, 57 Tex.Crim. Rep.. There are many other cases that might be cited in support of this proposition, but these would seem to be ample.
The State would not be authorized to place Cassie Dunn on the stand with full knowledge that her testimony would exonerate defendant and inculpate another as the guilty party, and successfully then offer another statement of hers made out of court which would be beneficial to the State. Perrett v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 316. I do not care to amplify this matter.
This is the only question in the case that I care to discuss. I think the exception to the court's charge was well taken, but I do not care to enter into a discussion of that question.
I, therefore, concur with Judge Harper in granting the motion for rehearing and reversing and remanding the judgment.