The State's motion for rehearing invites *Page 654 a review of many of the cases wherein art. 755, Code Crim. Proc., has received or been denied application. The article as here involved may be paraphrased thus: A party may prove the prior contrary statement of a witness in impeachment of his testimony when he testifies to a fact injurious to the cause of such party. No opinion of this court has attempted an analysis or definition of the phrase "a fact injurious to his cause." These questions arise in an endeavor at construction. Does the word "cause" meanmerely the case made by the pleading and relate only to the issuable facts arising therefrom, or the facts that must be proved to entitle the party to judgment? Second, do the words mean that the party must have first made out by evidence a prima facie case before a witness can be deemed to testify to a fact injurious to his cause? Third, is the statute so broad as to cover all relevant testimony, though collateral to the issuable facts? Fourth, is it intended that the party may impeach his witness whenever he contradicts other witnesses on whose testimony the party bases a theory of his case? The adjudged cases make it clear that a party may question his witness as to former favorable statements when he has unexpectedly denied the statements, and yet not have the right to impeach him. If the testimony be merely negative and is not in its effect equal to the affirmation of a fact favorable to the adverse party, the party introducing him can go no further than — if he may — refresh his memory and get from him a retraction or modification of his testimony; but when the witness goes over to the enemy and affirms a fact destructive in whole or in part of the cause of the party introducing him, he, being no longer his witness as to such a fact, may be attacked in any way and by all means, except that of proof of reputation. Is he such an enemy when he refuses to sustain the party's cause by denying an affirmative such party seeks to establish and asserting the negative of the fact? If the fact involved is, if true, known to the witness, is his denial for that reason any the more open to impeachment? If the fact could not be without his knowledge his denial of knowledge is certainly equivalent to a denial of the fact, unless he take refuge behind a bad memory. If A assert that B shot him and later testify that it was C and not B, B being on trial for the assault, the evidence is both injurious to the State and favorable to B; but if he assert that B was his enemy and testify that B was not his enemy he could not be impeached by proof of the assertion, unless it be shown that the assault grew out of or was induced by the enmity. If the enmity be related to the assault as a procuring cause it would be relevant to a fact in the case, collateral to the elemental facts of the case, yet admissible in chief. Is it testifying to facts injurious to the State's cause if in such case A denies that B was his enemy? He thereby, insofar as believed, destroys the theory of the State as to motive or moving cause for the assault, but neither the intent nor the character of the act is in any degree questioned by such proof. *Page 655 This discussion is not intended to raise a question not made by appellant, but to discover, if possible, the sense of the statute.
It is urged in the motion that the court erred in holding that Mary Watson should not have been subjected to the examination complained of by appellant, she being a State's witness. Upon a careful review of the record, with examination of the authorities, the majority of the court, while not approving the manner of examination, have concluded that, since the State was, as we held, properly allowed to offer evidence tending to prove improper relations between appellant and the witness, and had, before introducing her, made some proof of such fact, it was permissible for the State to show that she had testified before the grand jury to the existence of such relations in impeachment of her testimony before the trial court denying the relations. While the matter of their relation was in a sense collateral to the issue in the case, it was yet relevant to the matter of motive, or to put it otherwise, original evidence for the State as held in many cases by this court and not collateral in the sense that it affected the witness only and not the case. If then the State could properly prove the fact and thereby account for the motive on appellant's part and had made some proof of the fact, such fact had become practically a part of its cause. Hence, it would be injurious to the State's cause to disprove this fact from which motive could be deduced. Countervailing testimony from a State's witness may be said to be injurious to the State's cause when it involves matter relevant to the State's case as made in the pleading and sustained by the testimony. If the State has offered no evidence to prove a relevant fact, it can not be said that its witness who denies the existence of such relevant fact has by such denial injured the State's case. If, for instance, in theft, the nonconsent of the owner has not been proved, owner's denial of his nonconsent or assertion that he didconsent could not injure the State's case, and the fact that he had elsewhere stated or sworn to his nonconsent would not be provable. If the fact of illicit relation between appellant and Mary affected only her credit as a witness and was not a substantive relevant fact provable by the State as a part of its cause, such fact ought not to be shown by the State when denied by her. If the fact of intimacy was relevant to any issue raised under the charge of murder and plea of not guilty, the State had the right to prove it, and such fact, after the State had adduced evidence tending to prove it, was no longer a fact going merely to the credit of the witness, but became a fact in the State's case and the State's case would, therefore, be injured by its witness if such witness should testify that the fact did not exist. The difficulty in the situation is that witness did not affirm anything, but stopped at a mere denial, and if we do not keep in mind the relation of the witness to the fact; that is, that it could not be without her knowledge, we are in danger of being confused by the bare surface aspect and lose the sense in pursuit of the mere form of the *Page 656 words of the statute. It is either true or not true that the intimacy existed, and her testimony that it did not exist is an affirmance of the absence of the grounds of the motive for the homicide that the evidence previously given for the State indicated as the only assignable motive. It is true that Baum might be proven guilty of murder without proof of any motive and that his reason for the homicide does not in itself render him more or less guilty; then why should proof of motive be allowed? We take it for the purpose of aiding the proof of intent and malice and of probability that he did the act unlawfully. It is more likely one would unlawfully kill the person he hated or feared than a person he neither hated nor feared. If the motive be thus connected with the act it is a relevant fact, as much so as the kind of weapon or means used in the killing. If a State's witness, after saying that defendant cut the deceased with a knife blade six inches long, should testify that the blade was but an inch long, and the State had already offered proof tending to show it was six inches long, surely he could be contradicted by his previous statement, for the intent to kill or not to kill is to be judged of, in part at least, by the nature of the weapon used.
In Rice v. State, 51 Tex.Crim. Rep., the term "collateral," as relating to the matter of impeachment of a witness, is defined as signifying matter not relevant to the party's case. In Red v. State, 39 Tex.Crim. Rep., 46 S.W. Rep., 408, this court held that where the wife of defendant testified that she saw the killing, after having stated that she did not, it was permissible to contradict her by proof of her prior negative statement. In McCray v. State, 38 Tex. Crim. 609, 44 S.W. Rep., 170, it is held that prosecutrix in an assault case can not be impeached by proof from others that she was a prostitute, as that was not a fact relevant to the case, but could be asked if she was a prostitute as that related to her credit.
In Exon v. State, 33 Tex.Crim. Rep., 26 S.W. Rep., 1088, defendant's wife having testified before the grand jury that she caught defendant and the girl (an under-age rape case) testified on the trial, being introduced by defendant, that she had never seen them in compromising position. It was held she could be impeached by her contrary testimony before the grand jury. In Exon v. State, 33 S.W. Rep., 336, it was held that a wife, witness for husband, may be asked on cross-examination if she gave birth to a child before marriage, but not contradicted if she denied it, as the matter was collateral to the issue and went merely to her credit. In De Lucenay v. State, 68 S.W. Rep., 796, it was held not error to refuse to let defendant show by cross-examination of second woman (the charge being bigamy) that she was guilty of incest, she not having testified to any material fact for the State, the idea being that it was idle to impeach a witness who had not testified to any fact. In Brittain v. State, 85 S.W. Rep., 278, a woman charged with killing another testifying for herself, was asked on cross-examination as to her *Page 657 improper relation with her husband before marriage, the theory of the State being that jealousy was the motive for the killing. This court held it proper. In Lankster v. State, 43 Tex. Crim. 298, 72 S.W. Rep., 388, it is held that collateral matter, or such as a party could not prove to make out a case, is not subject to impeachment. In Railway Co. v. Brown, 76 S.W. Rep., 794 (civil case for death on railroad), defendant's engineer testified that when he saw deceased he thought he was on the dump. It was held proper to permit proof by other witnesses that he had stated that he thought deceased was on the bridge and would get off. In Richardson v. State, 44 Tex.Crim. Rep., 70 S.W. Rep., 320, it is held that character of the female in incest being immaterial, she can not be impeached by testimony of admissions of intercourse with other men. In Boatwright v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 760, the witness denied his statement of his reason for leaving defendant's home and assigned another reason. Held, he could not be contradicted for that his reason for leaving was immaterial, but it is said if he had testified to seeing the offense committed, or some acttending to prove it, he could be impeached. It is held in Bennett v. State, 28 Texas Crim. App., 539, 13 S.W. Rep., 1005, that a State's witness may be impeached by proof of his ill-will toward defendant and of his reckless disregard of truth. Turner v. State, 33 Tex.Crim. Rep., 25 S.W. Rep., 635, holds relevant to the relation of defendant with deceased, the suing out of an injunction that caused ill-will. In Herndon v. Reed, 18 Texas Crim. App., 665, it is held that a witness for the State may be impeached by proof that he sought to induce another witness to lie; and in White v. Railroad, 46 S.W. 382, it is held that a witness' statement that he got money to testify may be used to impeach him when he had denied it.
It would seem logical that when a party may impeach his own witness who testifies to the injury of his cause, he should have the same latitude so far as relates to proof of contrary statements, as though the witness were put up by the adverse party, except when he has no other evidence of the fact to be proved or no good reason to expect the witness to be favorable. If the fact be relevant in the first degree and the State has made some proof of its existence, then puts up a witness who knows whether it is true or not and who has previously sworn it was true, expecting he will so swear on the stand, then if such witness testifies the fact did not exist, the State may justly claim both surprise and injury. Had the witness not led the State to expect her to affirm the fact, the State would have rested the issue upon other evidence it had or could obtain, and if in such event this witness had been called for the defendant the State could have contradicted her by her prior statements. The real reason why a party may attack his own witness is that he turns out to be a witness of his adversary, and while the adverse party is not responsible *Page 658 for the double-dealing of the witness and should be guarded against the possibility that the jury may mistake the impeaching prior statement for evidence against the defendant; the State, acting upon the reasonable belief that the witness would adhere to his prior statement, ought not to be left in the attitude of disproving by one witness what it had sought to prove by another. Therefore, it should be permitted to show that the witness by his previous statement had led the State to expect favorable testimony and to produce such previous statement so that the jurors may determine what weight ought to be given his testimony. If they, notwithstanding the statement out of court, accept the testimony of the witness, it is their prerogative. On the contrary, should they conclude the witness unworthy of credit in the particular matter, it stands as though the witness had not testified and neither party is wronged.
While the statutory words are, "when facts stated by witness are injurious to his case," it has never been understood that a witness could not injure the cause of the party calling him by deposing to a state of facts which, if true, prove a negative. If Mary's testimony were taken as true it proved a negative which defendant did not have to prove, and had no interest in proving until some evidence affirming the fact had been adduced. If proof of a negative be made it matters little whether the proof come from the State's or defendant's witness. If the affirmative fact be helpful to the State, the denial is helpful to defendant and hurtful to the State. If she had testified defendant did not use the knife on deceased, or did not utter the words attributed to him by other State's witnesses, she would have merely denied facts testified by other witnesses; yet if she had previously affirmed such facts, surely she could be impeached. If an answer of witness in negative form is not impeachable, why should any statement that is in substance a refutation of the State's case be impeachable? The test is not in the form of the words, but in their effect upon the case as it stands at the time, whether the witness affirm or deny the fact. A defendant may wholly defeat the case by evidence going no further than to deny the facts of the case. It is a refinement of construction destructive of the purpose of the statute to distinguish between negative and affirmative responses of the witness, holding the one without and the other within the statute. The form of the response is, after all, determined by the phrasing of the question. In whatsoever form of words the party's witness may testify of or concerning a relevant fact if what the witness testifies is injurious and can not be true, unless what had already been testified in behalf of the party is false, the statute applies.
The State's motion for rehearing is granted and the judgment is affirmed.
Affirmed. *Page 659
ON MOTION FOR REHEARING. January 4, 1911.