The state, through the county attorney of Brazos County and attorneys appearing as special prosecutors, has filed a motion for rehearing, in which it is insisted that the evidence complained of in bill of exception No. 3 discussed in our original opinion, was admissible for the purpose of impeaching appellant. We commend counsel for their zeal and interest in behalf of the state and in urging their theory before this court, but we are not able to accept their view of the matter.
On direct examination appellant testified that he had never been convicted of a felony or of any other offense, that he had never been tried before, and had never been arrested before. On cross-examination, he was asked about a difficulty with Mr. Carson, and, in response to questions by state's counsel, appellant gave his version of that transaction. It was entirely foreign to the case on trial and immaterial to any issue in the case. It is true no objection was urged to this examination of appellant, but when the state called Mr. Carson to give testimony as *Page 365 set out in bill of exception No. 3 objection was interposed upon the ground that the inquiry was regarding a matter wholly immaterial, irrelevant and foreign to the case at bar, and prejudicial to appellant's interest. The general rules are very tersely stated by Mr. Branch in his Annotated Texas Penal Code, sec. 165, as follows:
"The impeachment of defendant or any other material witness on an immaterial matter is not harmless error," the reason being that "by discrediting the witness and showing the jury that upon an immaterial matter he had testified falsely, it is calculated to make the jury believe that he may have testified falsely in regard to other matters which were material. * * * It is not proper to allow a witness to be cross-examined as to any matter which is collateral and immaterial to the issue merely for the purpose of contradicting him by other evidence. * * * When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question."
Many cases will be found annotated supporting the text quoted. Among others, see Johnson v. State, 27 Texas App., 163; Rainey v. State, 20 Texas App., 473; Wilson v. State,37 Tex. Crim. 64; Ballard v. State, 160 S.W. 716; Holland v. State, 60 Tex.Crim. Rep.. The reason for the rules is discussed at considerable length in some of the cases referred to, and it is not necessary to repeat it here.
The state's motion for rehearing is overruled.
Overruled