When the witness Tom Mooney disclaimed recollecting the occurrences on his appearance before the grand jury and by reason thereof, the State successfully laid the predicate for impeaching him. Fuller v. State, 30 Texas Crim. App., 559. State's counsel, however, pressed the witness in an effort to secure from him an admission that in his testimony before the grand jury he had made false statements and sought and obtained opportunity to correct them. In this the State also succeeded in part. In pressing the matter when the witness insisted that his recollection was at fault, the court interposed with the statement: "You certainly know whether you told the grand jury that or not," and subsequently threatened the use of "harsh measures" in the language quoted in the original opinion. That in so doing the trial judge made it plain to the jury that in his judgment and opinion the witness wilfully prevaricated in stating that he did not remember *Page 457 the matter referred to. The witness had given important testimony favorable to the appellant, both as to the incidents immediately attendant upon the homicide and occurring a short time prior thereto. The State's counsel regarded his testimony of such importance as to impel them to undertake to discredit him. In this effort they proved by members of the grand jury that he had made contradictory statements before the grand jury touching the occurrences at the time of the homicide and succeeded in obtaining from him admissions of a similar nature. There was no contradictory statement developed, however, to that part of his testimony in which he said that before leaving the ball grounds he heard Lexie Harper tell the appellant that he had better be careful, that the deceased had gone to his house after a gun. This testimony was of great importance to the appellant in that it did not come from any other witness except the appellant. It afforded an explanation of his reason for arming himself after he left the ball grounds and before he went to town, and a reason for his following his brother Henry to town, and disclosed a fact within his mind at the time he fired the fatal shots which he claimed to have fired in defense of himself and his brother Henry. If the witness Mooney was discredited to the extent that the jury would not believe that Lexie Harper made the statement attributed to her, important elements of the defense were eliminated. The State was entitled to eliminate them by the usual methods of impeachment, but insofar as the comment of the court upon the credibility of the witness contributed thereto, the appellant's legal rights were infringed. Any comment by the court upon the weight of the testimony or credibility of the witnesses is an infringement of the legal rights of the accused on trial, made so by statute. Simmons v. State, 55 Tex.Crim. Rep.; C.C.P., art. 787. It is not every comment, however, that requires reversal, for the reason that all comments are not harmful, and the question whether the judgment is to be reversed is determined not upon the language used in making the comment, or the fact that the comment is made, but upon the consequences which probably result therefrom.
State's counsel in motion for rehearing insist the case of Loan v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 305, is in conflict with the original opinion rendered in this case. In the Loan case a State's witness on his direct examination who had given no material testimony favorable to either the State or the defendant, and who in answer to all material questions said "I don't know," and in answer to questions propounded to him by the court, which were framed in a manner not to suggest the answer, that he did not know, was fined by the court in the presence of the jury. Loan was on trial, reserved an exception, and asked for a reversal because of the conduct of the court. The case was affirmed. The *Page 458 witness who was fined had said nothing to Loan's prejudice; nothing in his favor, and from a legal point of view it was manifestly a matter of indifference to him whether the witness was fined or not. If in the presence of the jury the court had pursued the same procedure that was pursued in the Loan case with reference to a witness who had given material testimony favorable to the accused, a different question would be presented, and very likely under such circumstances the trial court would not have punished the witness in the presence of the jury, but would have deferred the matter to a time that it might be done without prejudice to the case of the accused on trial.
The remark of the court quoted in Bankston v. State,80 Tex. Crim. 225, 189 S.W. Rep., 142, to the effect "I don't think you can establish it by her; she doesn't know which end she stands on" is referred to. In that opinion it is stated: "The bills are wholly insufficient to present the question for review." The court adds, however, that if the bills were perfect a reversal would not result from the making of the remark. Keeping in mind the principle that it is comments that may be harmful alone that result in reversals, we assume that the court in making the remark had in mind the record before it from which it appeared that no injury resulted. On the language used the case is certainly not more in point than that in Manning v. State, 37 Tex.Crim. Rep., where the court said: "We also believe the court committed an error when the defendant stated, in answer to a question by the State, that he had no recollection of the matter inquired about, and, on his repeating this answer, in stating, in the presence of the jury, that the witness refused to answer the question asked." But as stated above, the vice is not determined by the formula used by the court in expressing his comment, but by the result that may follow. The remarks of the court in the instant case, as we construe them, in connection with the matters developed in the bill and the record as disclosed, were calculated to prejudice the appellant's case by causing the jury to disregard testimony in his favor given by the witness Mooney. McPherson v. State, 79 Tex.Crim. Rep., 182 S.W. Rep., 1114; Pharr v. State, 7 Tex.Crim. Rep.. We are, therefore, unable to form a conclusion coinciding with the views of State's counsel which have been urged with commendable zeal and marked ability.
The motion is overruled.
Overruled. *Page 459