I was not present, and therefore did not participate in the original disposition of the case wherein my brethren affirmed the judgment of the court below. On motion for rehearing, the majority have overruled the same, adhering to the former opinion. To this I most respectfully enter my dissent.
1. Sustaining the action of the trial court overruling the application for a continuance, my brethren treat the defendant and his wife as witnesses in the case — as if they stood in the same category as if one was not the defendant and the other his wife. In other words, they treat the defendant and his wife as ordinary witnesses in the case. I am not aware of any opinion heretofore rendered so holding. The Constitution provides that the defendant shall not be compelled to give evidence against himself, and under no circumstances heretofore has he been treated as a witness in the case. The same may be said of the wife. She can only testify for her husband and not against him, except in cases where there is violence on the part of the husband against the wife. This is not that character of case; as I understand the law with reference to the production of testimony and the granting or refusal of a continuance, the witnesses under such circumstances are those only who can be compelled to testify. The testimony of husband and wife, therefore, can not be treated as cumulative evidence, or regarded from that standpoint in application for continuance. The rule is laid down by my brethren in this case that the defendant and his wife are to be treated as ordinary witnesses and forced to testify. This is not the *Page 233 law under the Constitution or by any statutory enactment. The absent testimony was fully material and tended to solve one of the most important issues in the case, to wit: who began the difficulty, or who was responsible for its initiation. If the defendant was, his case would be placed in an entirely different and more unfavorable light before the jury that it would if the deceased began it. If deceased began it, appellant would stand much more favorably before the jury and the law. While this, in a sense, may be treated as a second application, still it is not to be treated here as if the absent testimony was cumulative. Under the law in this State, the testimony of the husband and the wife is not to be so treated and is placed on entirely different grounds from that of the ordinary witness. The cases cited in the majority opinion, in regard to cumulative evidence, therefore, are not in point and are not applicable. If the testimony of the defendant and his wife is to be treated in the light of the evidence of ordinary witnesses, that would force the defendant to place himself and wife upon the stand as witnesses. I think my brethren are in error upon this ruling. They would scarcely assert that an accused person must use himself and wife as witnesses as a means of defending his application for continuance. This would be the only conclusion from their opinion. The defendant was entitled to the continuance. The testimony was very material.
2. A bill of exceptions reserved by the appellant shows that the State, while the witness, Weathersby, was on the stand in behalf of the State, the defendant, on cross-examination of the witness, asked him if it was not a fact that he had testified in the preliminary hearing of the case in the Justice Court held in Round Rock, in July last, to which he answered, "Yes." He was then asked: "Is it not a fact that at said preliminary trial you testified to the following facts: I heard Jim Allen say (to the deceased), `Well, you ain't goin' to pay it.' I then heard scuffling and then heard a gun fire. I did not see any scuffling." To which the witness answered: "I did not testify in the preliminary hearing before the justice of the peace that I heard scuffling and then heard a gun fire." Whereupon, the defendant introduced as a witness, S.O. Tisdale, and proved by said witness, Tisdale, that he was justice of the peace and held the examining trial last July at Round Rock, in the case of the State against Jim Allen, and the testimony at that time was reduced to writing, which writing was identified by said witness as the written testimony taken upon the examining trial of said cause as the testimony of the said Joe Weathersby, and he read therefrom as follows: "I heard a scuffling and then heard a gun fire." Whereupon, the State then offered in evidence the whole of the testimony of the said Joe Weathersby testified to by him in said preliminary hearing as follows. "Joe Weathersby, being sworn, testified: I am working on the M., K. T. section just south of Brushy Creek. John Spencer acted as boss when the foreman, Mr. Sansom, was away. Myself, John Spencer, and five Mexicans were all there on Saturday *Page 234 morning; about 9:45, Jim Allen came to where we were; he had a shotgun, a single barrel breech loader; Jim Allen came up and I says, `It seems like you are going hunting;' he says, `No, not exactly; the crows are bothering my corn.' Then we got to talking about the weather, and about the need of rain; no one was talking like they was mad. We talked a little while and Jim Allen sat down on the end of a tie. John Spencer told me to spike down a rail and I went about twelve feet to drive the spike; just about the time I started, Jim Allen got up; when he did so, he said something to John Spencer; said that he had told Jim Allen's wife that he would see him (Jim) and settle it, and they would settle it. I had gotten to where I was to drive the spike, about twelve feet off, and looked back and saw Jim Allen with his gun up in shooting position. I had just heard Jim say, `Well, you ain't going to pay it?' I heard a scuffling and then heard the gun fire. John Spencer did not have anything in his hand at the time. I did not at any time see Spencer trying to hit Allen. When the gun fired there was a great deal of smoke, but as soon as I could see, I saw Jim Allen run across the track and unbreech his gun and put in another shell, and I saw John Spencer laying on the ground. I then said to Jim Allen, `Mr. Allen, there was no need of that; if you had talked to me we would have settled it.' He said that John Spencer came at him with a maul. I told him that if he did I did not see it. Jim Allen left while I was talking to him. I went to Spencer at once, and he was gasping his last; he died right off. The Mexicans were about twenty feet from Allen and Spencer at the time of the shooting. At the time John Spencer told me to go and drive the spike, Spencer's maul was lying down by the side of the track; when I came to Spencer just after the shooting, the maul was lying in the same place and in the same position." To the introduction of which testimony, except as to the part offered in evidence by the defendant, to wit: "I heard a scuffling and then heard a gun fire," the defendant then and there, at the time, urged the following objections and exceptions: First, because the balance of said testimony was not sought to be impeached by the defendant and was, therefore, inadmissible, being nothing more than hearsay testimony, and the same was not in aid of the question of impeachment. Second, that it did not in any way explain the matter about which he had been impeached, namely: "I heard a scuffling and then heard a gun fire," which objection was then and there overruled. The court admitted this with the explanation that he considered the testimony admissible because the defendant, having introduced a portion of the statement, the State was permitted to introduce the whole on the theory that where one party introduces a portion of an instrument, the other party has the right to place the whole of the instrument in evidence. Second, that the defendant having sought to impeach the witness by showing conflicting statements, the State was permitted to introduce the whole of the witness' statement made on the examining trial, in order to support the testimony *Page 235 of the witness given on the trial of the cause insofar as it tended to do so. And, third, the defendant having introduced an isolated portion of the witness' testimony given on the examining trial, he deemed the whole statement admissible in order that the jury might determine whether the isolated statement truly reflected the meaning of the witness, and in order that the jury might consider the statement in the light of all that was said by the witness on the examining trial.
My brethren hold there was no error. I do not care to go into a discussion of the reasons advanced by the opinion on rehearing. They speak for themselves. This evidence was introduced solely for the purpose of impeachment, not as original testimony. It is a rule made by statute that where a witness is sought to be impeached by statements made on the examining trial, he can be sustained by other things stated at the time which serve to explain that particular statement or phase of his testimony. This is the limit under the statute to which this character of supporting evidence can be introduced. The statute excludes any testimony in regard to any other matters than that in which the impeachment was sought. The State or defendant, as the case may be, can not introduce all of the testimony taken on the examining trial, but is limited to that part of the testimony which is corroborative or explanatory of that about which he is sought to be impeached. This is the universal rule, not only under the statute, but under all the authorities. I cite a few cases in support of this. See St. Clair v. State, 49 Tex. Crim. 479; Red v. State, 39 Tex.Crim. Rep.; Messer v. State,43 Tex. Crim. 97, and cases cited on p. 106; Irby v. State, 25 Texas Crim. App., 214; Woodward v. State, 42 Tex. Crim. 188; Satterwhite v. State, 6 Texas Crim. App., 609; Kunde v. State, 22 Texas Crim. App., 64; Ford v. State, 41 Tex. Crim. 1; Casey v. State, 50 Tex.Crim. Rep.; Corpus v. State, 51 Tex.Crim. Rep.. These lay down the proposition that where a part of a statement is proved, it is error to permit the other side to prove all that occurred unless it is a part of the same subject and is necessary to make fully understood or explain the part offered by the other party. It will be noticed that the court permitted the entire testimony of the witness, Weathersby, taken at the examining trial, to be read before the jury, nearly all of which did not tend to explain or elucidate the question about which the impeachment or attempted impeachment occurred. This was clearly error. My brethren treat the bill of exceptions as if the entire examining trial testimony was not introduced.
Without elucidating the matter further, I most respectfully enter my dissent. The judgment in this case should be reversed and the cause remanded. *Page 236