A motion for rehearing was granted at a former term of this court, and the former opinion of the court reversed, and the judgment of the lower court affirmed. It again comes before us on motion for rehearing filed by appellant. The only question to be considered is the failure of the court to limit the purpose of certain impeaching testimony. The defense set up to the charge of theft was that appellant had bought the head of cattle in question from his brother, Alex Wilson. On the trial, Alex Wilson was introduced by the appellant and testified that he sold defendant a red heifer on December 24, 1894. (The State's proof tended to show the animal stolen was a red heifer, belonging to another person, which was taken on said December 24, 1894.) On cross-examination of this witness by the State, he was asked if he did not testify in the grand jury room, at the last term of the District Court, that he had not sold or let his brother, Willis Wilson, have any cattle, and he answered that he had not so testified. The State was then permitted to introduce two members of the grand jury, who testified that said Alex Wilson was examined as to said matter before the grand jury, and they stated that said witness did state on his examination before the grand jury that he had not sold his brother, Willis Wilson, any cattle at said time. Appellant insists that the court should have limited this testimony to the sole purpose for which it was introduced, to-wit: for the purpose of impeaching the said witness, Alex Wilson, although not requested so to do, and no exception was taken to the failure of the court so to charge; yet it is insisted that this was fundamental error, and he cites us to Paris v. State, 35 Tex.Crim. Rep.; Maines v. State, 23 Tex.Crim. App., 576; Washington v. *Page 385 State, 23 Tex.Crim., App., 336; Davidson v. State, 22 Tex.Crim. App., 372. The principle to be extracted from these cases is well settled in the case of Maines v. State, supra, cited by counsel, and we quote therefrom as follows: "The general rule is that whenever extraneous matter is admitted ia evidence for a specific purpose incidental to, but which is not admissible directly to prove, the main issue, and which might tend, if not explained, to exercise a strong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to the right of the party, then it becomes the imperative duty of the court in its charge to so limit and restrict it as that such unwarranted results cannot ensue; and the failure to do so will be radical and reversible error, even though the charge be not excepted to." And it will be found on an examination of the cases cited by counsel that from the very nature of the testimony it was, unless limited, calculated to injure the rights of the appellant. Besides those, there are a great number of cases on the same line. In some of them a charge is required, because there is danger of the conviction of defendant for some offense proved other than charged in the indictment. In other cases, while the evidence is admissible for the purpose of impeachment, it is calculated to be unduly used by the jury for some other purpose than as impeachment testimony. The converse of this is equally true; that is, where the testimony can be used for no other purpose than that of impeachment, it is not necessary for the court to limit the purpose of the same in its charge. See, Moseley v. State,36 Tex. Crim. 578. The simple question is, whether the testimony which was adduced for the purpose of impeaching the witness, Alex Wilson, under the circumstances of this case, could have been used by the jury for any other purpose detrimental to the accused. If no witness but Alex Wilson had testified to the sale of the red heifer to his brother, the defendant, then the jury would not have probably used it for any other purpose than to impeach the witness. Alex Wilson having sworn on the trial that he let his brother have a heifer, which was taken and killed, proof that he had stated before the grand jury that he had not sold the heifer to his brother was in direct conflict with his testimony on the trial of the case. He was thus impeached, and the jury, under such an impeachment, would have been justified, if the other facts warranted it, in disbelieving him altogether. Bat the appellant was a witness in the case, and he swore positively that he obtained the animal taken and killed by him from his brother, Alex Wilson. Now, while the testimony of the two grand jurors was admissible for the purpose of impeaching Alex Wilson, and thus destroying his testimony, the statements made by Alex Wilson to the grand jury could not have been used for the purpose of impeaching the testimony of the appellant. The jury in this case may have used this testimony for both purposes — not only for the purpose of destroying the testimony of Alex Wilson, but as evidence showing that in fact the appellant had not obtained the animal, as sworn to by him, from his brother. Let us suppose that, Alex Wilson had not been a witness *Page 386 in the case, and defendant had sworn that he had obtained the animal in question from Alex Wilson, what Alex stated before the grand jury; whether under oath or not, would not have been admissible in the case, unless Alex was a witness, and their for the sole purpose of impeaching him. The State's case is as follows: "That the heifer had been running on that range from a calf up to the time it was missed; that a witness saw appellant driving a heifer corresponding with that which belonged to the prosecutor, and that that heifer was slaughtered by appellant. No witness swears that the animal slaughtered by appellant bore the brand of the prosecutor. The boy who saw him driving it did not see the brand. Defendant himself swore to the same facts as his brother, Alex Wilson. Now, this was the issue — whether or not appellant had taken an animal belonging to the prosecutor. In support of this defense, he relied upon the testimony of his brother and himself. The State contradicted the brother, and the jury may have used this contradictory evidence for the purpose of showing that in fact appellant did not obtain the animal from his brother, and that the defense was manufactured. Under this state of case it was of vital importance that the court should have limited the impeaching testimony to its proper purpose, instructing the jury that they could only use it for the purpose of impeaching Alex Wilson, etc. We are of opinion that the omission in the charge of the court, as above indicated, was calculated to injure the rights of the accused under the circumstances of this case, and a rehearing is granted, and the judgment is reversed, and the cause remanded.
Reversed and Remanded.