This case was affirmed at a former day of this term, and appellant has filed a brief and an able argument in which he strenuously insists that the court erred, and that the case should be reversed.
We will first discuss the questions presented in appellant's argument, as he doubtless deemed them of most importance. As shown in the original opinion, while appellant's witness, Will Vaughn, was on the stand, the prosecuting attorney asked some improper questions, the first of which was, how many times the witness had been arrested for whipping his wife; the second, how many times the witness had been arrested for adultery, and the third, had the witness ever been arrested for an aggravated assault on his wife. Appellant objected to these questions, and the court promptly sustained the objections made. This witness had testified in behalf of defendant that the evening of the homicide deceased had come to his barbershop, oiled and cleaned his pistol, and told him he was going to whip or kill appellant that night; that he informed appellant of his statement or threat the same evening. The witness did not claim to have seen the shooting or any part of it, nor any of the immediate acts leading up to it. The questions were not such as could or would prejudice the jury against defendant, but appellant insists that they were such as would cause the jury to believe that the witness was guilty of the offense named, or appellant would not have objected, and thus have a tendency to impair the effect of his testimony. We do not think this the necessary or natural result of such questions. If the court sustained the objections, as he did in this instance, would not appellant's counsel insist before the jury, and would not the jury naturally conclude that if the State, by improper and illegal means, was seeking to impair the force of the witness' testimony, that the testimony was cogent and forceful, and the State could not legally impair its effect, and for this reason consideration would be given it? Where the trial court promptly sustains the objections when improper questions are asked, it has never been the policy of this court to reverse the case, unless the conduct of the prosecuting attorney was such as to render it inevitable that the mere asking of the question was calculated to injure the defendant, and in this instance, the questions being such that while if the witness admitted being guilty of the offenses inquired about, might injure his standing in the community, would not necessarily imply that his testimony was *Page 648 unworthy of credit. In the case of McCorquodale v. State,54 Tex. Crim. 344, 98 S.W. Rep., 879, the prosecuting attorney asked a witness for the defendant, "Now, is it not a fact that defendant is an old poker player?" Objection was made and sustained, and the court, speaking through Judge Davidson, held there was no error, as there was no testimony admitted before the jury. See also Howard v. State, 37 Tex. Crim. 494; Alexander v. State, 21 Texas Crim. App., 406; Williams v. State, 30 Texas Crim. App., 354; Terrell v. State, 15 S.W. Rep., 769; Harding v. State, 6 Texas Crim. App., 327; Doss v. State,50 Tex. Crim. 48, 95 S.W. Rep., 1040; Powell v. State,51 Tex. Crim. 342, 99 S.W. Rep., 1005; Harris v. State,50 Tex. Crim. 411, 94 S.W. Rep., 227; Leonard v. State,56 Tex. Crim. 307; Henderson v. State, 49 Tex. Crim. 478, 91 S.W. Rep., 569. Asking the questions proved no fact, and we think it would be an unwarranted assumption on our part to assume that when the court promptly sustained the objection, the jury would at once conclude that the witness was guilty of the offenses named, and that it unduly influenced them. There are cases where we have reversed if questions probably injured.
The next criticism is that this court erred in the statement: "There was a sharp conflict in the testimony between the witness Vaughn and witness Sims, on who it was that came in the shop and made the remarks attributed to defendant by Sims, and to deceased by Vaughn." We might have been inaccurate in the use of the word "statement" instead of the word "threats," but not in the conclusion that there was a sharp conflict in their testimony. Vaughn testified that deceased came into his shop, cleaned his pistol, and said he was going to whip or kill defendant. Sims says deceased did not come into the shop that day and had not been in it for several days, and Sims further says defendant did come in, and said: "I am going to do it — I have just got to do it." When Vaughn replied, "Well, you can have my last dollar." Vaughn denied that appellant made any such remark. So it is seen that Vaughn testifies to a threat made by deceased, which Sims says was not made; and Sims testifies to a threat made by appellant, which Vaughn says was not made. Vaughn says deceased was in the shop. Sims says he was not in there that day, and if there is not a direct conflict in the testimony of the two men, we can not understand the statement of facts, and this is followed in appellant's argument by a criticism of that part of the opinion admitting the testimony of the witness Lightfoot, who testified that shortly after appellant had shot and killed deceased he met the witness Vaughn, who told him that "appellant Renn had killed Collins, and appellant had told him, Vaughn, he was going to do it." The witness had testified on the trial to a threat made by deceased, and denied that appellant had made any threat in his presence when he was asked, if shortly after the killing he had not made the above statement to Lightfoot, which he denied. Lightfoot *Page 649 then testified that he had so stated to him. That this is material can not be denied. The State witness Sims was testifying that appellant was in the shop and making threats against deceased. The defendant's witness Vaughn was testifying that deceased Collins was in the shop making threats towards appellant, and appellant had made no threats. On the night of the homicide Lightfoot says that Vaughn told him that appellant had killed deceased, Collins, and had told him he (appellant) was going to kill deceased. As to the reason why the witness could not be thus impeached, we fail to understand. In the case of Drake v. State, 29 Texas Crim. App., 265 (which has been termed a leading case), this court says: "If in laying the predicate to impeach the witness Drake, Jr., he had been asked, `Did you not state in the presence of Hugo Robinson, Street Bacon, Bob Fleming, and Todd Ziegler, on the evening or night of August 27, 1887, the day that Guinn was shot by your father, and at or near the store of Chas. Rast, in Waco, that your father told you on that morning before the homicide that he was going to kill Guinn?' the question would have been proper; would have been as to a fact relevant and material to the main issue, a fact with respect to which the witness could be impeached by proving that he did make such statement."
In this case the question asked was, "Did you state in the presence and to Nick Lightfoot that appellant had told you that evening he was going to kill Collins that night?" This was denied by the witness Vaughn. Under the authority of the above case, and all the decisions of this court rendered since that date, it is permissible to thus impeach a witness. Boatright v. State,42 Tex. Crim. 442; Adams v. State, 52 Tex.Crim. Rep.; Ex parte Sanders v. State, 54 Tex.Crim. Rep.; Deneaner v. State, 58 Tex.Crim. Rep., and cases cited.
This disposes of all the questions in appellant's brief. However, in the motion for a rehearing several other questions are assigned, but no authorities are cited sustaining his contention — the next ground being that the court erred in remarking: "I think the witness is doing the best he can." This question is treated fully in the original opinion, but for additional authorities see Mitchell v. State, 50 Tex. Crim. 180,100 S.W. 930; Cole v. State, 51 Tex.Crim. Rep., 101 S.W. Rep., 218; Waggoner v. State, 49 Tex.Crim. Rep., 98 S.W. Rep., 255.
All the questions raised in the motion for a rehearing having been discussed in the original opinion, we would not further discuss them but for the notation made at the time by our presiding judge, wherein he says: "The testimony mentioned in bills of exception ought to be excluded under the Drake case, 29 Texas Crim. App., 265, and that line of cases, including the late case of Hickey v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 1051." This relates to the testimony offered to impeach the witness Vaughn. As shown *Page 650 above, the Drake case is authority for the admission of this testimony of the witness Lightfoot, it holding that such testimony is admissible to impeach a witness in regard to a statement of the character testified to by the witness. We also think the Drake case is authority for admitting the statements: "Well, you can have my last dollar," and "That is Renn now." In the motion for rehearing in the Drake case, 29 Texas Crim. App., 265, it is said: "A statement of an opinion merely can not be used to impeach a witness, except when opinion is an issue, or where the opinion stated goes to show bias of the witness." Whart. Crim. Law, sec. 482; 1 Greenl., sec. 449; Holmes v. Anderson, 18 Barb., 420. Now, what does this record show? The witness Vaughn testified that deceased came to his shop, cleaned his pistol and told him that he was going to whip or kill appellant that night, and that a short time before the killing he had informed appellant of these facts and this threat. The witness Sims says he was in the shop, and no such conversation took place; in fact, deceased did not come in the shop that day, but instead, appellant made a threat in regard to deceased. Vaughn as a witness was friendly in his testimony to appellant, and testified to facts that would aid appellant in his contention that he at the time of the shooting had a reasonable apprehension of danger and grounds for such apprehension. Is the State bound by the testimony of the witness Vaughn, or can it impeach him and show its falsity, and show it to be the testimony of one who by his prior acts and conduct is a person biased in his feelings in the case? In the Drake case, it is held to be admissible if it goes to show the bias of the witness. In the Hickey case it is said: "If the witness by her testimony shows bias, prejudice or hostility," she can be cross-examined about such matters. Nothing more definite could be shown that would demonstrate to the jury the bias of the witness Vaughn than this conversation, in which it is alleged that appellant told Vaughn, "I have made up my mind to do it — I have just got to do it," when Vaughn replied to him, "Well, you can have my last dollar." And shortly thereafter when he heard the shots, he remarked: "I guess that is Renn now." It is true Vaughn denies all this, but another witness is as positive that it did occur, and when this is followed on the trial by the witness Vaughn testifying to preparation and a threat on the part of deceased, which a witness who stayed in the same shop says did not occur, the jury is entitled to have this light in passing on the weight of the testimony. We are not passing on which is telling the truth; that is a question for the jury, and in doing so, they are entitled to have all the information that will enable them to properly do so, and which tend to show the friendship and bias of Vaughn for appellant, or the State witness for deceased, in order to give proper weight to the testimony of the State witness and the defendant's witness. Mr. Wharton in his excellent work on the Law of Evidence lays down the rule, sec. 408: "One *Page 651 of the advantages of cross-examination, as we shall have occasion to see more fully hereafter, is that it enables the bias of a witness to be disclosed, and this is peculiarly important where interest is no longer a ground for disqualification. We should at the same time remember, however, that pecuniary interest in a case is by no means the only influence by which bias is produced. Relationship, party sympathy, personal affection, work upon the perceptive powers of witnesses more subtly and more effectively, in the great body of cases, than does pecuniary interest; and it is by no means creditable to the English common law, that it regarded the less honorable influence as so powerful that the interest of a single penny would incapacitate, while it so little appreciated the force of the nobler affections that in only one case, that of marital relationship, did it recognize their existence. Now, however, that all disqualifications are removed, and that proof of interest goes only to credibility, influences of all kinds are equally objects of consideration, in determining how far credibility exists. Credibility, therefore, so far as it depends upon the capacity for accurate narration, is now relieved from the obstructions produced by the old rules, and is determinable by the ordinary laws of free logical criticism. The question now is, not whether a witness is to be received, but how far he is to be believed. Interest and party sympathy may be always shown in order to discredit a witness, and the same observation may be made as to near relationship."
And in section 545 he says the witness may be required to explain whatever would show bias on his part, citing authorities from almost every State in the Union.
In the 30 Am. Eng. Ency. of Law, page 1088, the rule is laid down: "The fact that a witness manifests a bias or partiality for the party who calls him is a proper matter for the consideration of the jury in estimating the value of the testimony, and it is a general rule that on cross-examination any fact may be elicited which tends to show such bias or partiality. If the witness denies the facts showing bias, the cross-examining party may call other witnesses to contradict him." This is the rule adopted in Texas so far as we have been able to ascertain from the reports. Magruder v. State, 35 Tex.Crim. Rep.; Daffin v. State, 11 Texas Crim. App., 76; Ashlock v. State, 16 Texas Crim. App., 13; Crist v. State, 21 Texas Crim. App., 361; Jenkins v. State,34 Tex. Crim. 201; Sims v. State, 38 Tex.Crim. Rep.; Clark v. State, 43 S.W. Rep., 522; Webb v. State, 58 S.W. Rep., 82; Pace v. State, 79 S.W. Rep., 531. Judge Davidson in the cases of Earle v. State and Pope v. State, decided at this term of court, discusses at length this question, and those cases are here referred to as showing the admissibility of this character of evidence to show the feeling and bias of the witness. In those cases he cites many authorities, and we do not deem it necessary to again cite them, but refer to them and adopt the views there expressed by him. *Page 652
The statement that the witness Vaughn said appellant had told him he was going to kill deceased, is admissible under all the authorities, as is also the statement of the witness Sims, that he heard appellant make a threat, and we think it equally clear that when appellant made this threat, that the witness Vaughn replied, "You can have my last dollar," and the other statements attributed to him were admissible as showing bias and friendly regard for appellant as going to the weight of his testimony. All of this testimony was properly limited by the court in his charge to the purposes for which it was introduced and was admissible, and no such matters are presented as should cause a reversal of the case. If the statement, "You can have my last dollar" and "that is Renn now" were not admissible for the purposes of impeaching and affecting the credibility of the witness Vaughn as showing his bias (which we think they were) yet said statements could not and did not tend to show that appellant was or was not guilty of any offense.
The motion for rehearing is overruled.
Overruled.