ON MOTION FOR REHEARING.
LATTIMORE, Judge.We have given our most careful consideration to the matters urged in appellant’s motion for rehearing. To make ourselves clear may require seeming repetition.
The State’s case rested on the testimony of witness Taylor, who was an eye-witness to the homicide. He fully testified to facts showing appellant’s guilt, and further said that after the occurrence he met appellant who told him if he did not go up there and sign, that deceased fell out of his wagon and was thus killed, he, appellant, would kill him, witness. Also witness said that appellant’s son told him if he appeared against appellant he would kill him, and further witness said that, having seen appellant kill one man, he was afraid appellant would kill him, so he went to a notary’s office and signed an affidavit to the effect that deceased was killed by falling from his wagon. The record shows that said affidavit was shown witness during his cross-examination, and was by him identified, and same was later introduced in evidence by appellant. The notary who took said affidavit, a witness named Ash, and appellant gave testimony contradictory to that of Taylor when he said he made the affidavit in question because he was threatened by appellant and was afraid of him.
Appellant strenuously objects to that part of our opinion in which we upheld the action of the lower court in limiting in his charge the effect to be given to the testimony pro and con as to said affidavit, — to the question of the credibility of Taylor. Appellant calls attention to Art. 728, C. C. P., and to the cases of Gomez v. State, 94 S. W. (2d) 1157; Bennett v. State, 81 S. W. Rep., 30; Brown v. State, 77 S. W. (2d) 694; Hamilton v. State, 96 S. W. (2d) 983; Knight v. State, 183 S. W., 1158, and other authorities.
Art. 728, C. C. P., referred to merely sets out as the law that when part of an act, declaration, etc., is put in evidence by one party, the whole on the same subject may be introduced by the opposite party; and that when a detailed act, declaration, *375etc., is put in evidence by one party, any other act, declaration, etc., necessary to make that part introduced fully understood, may be introduced by the other party. Just how this supports appellant’s proposition is not clear to us. Taylor testified as a witness that he saw appellant kill deceased by striking him with a wagon standard. He further testified that later he made an affidavit, in effect, that his former testimony was false, and that in fact deceased was killed by a fall from his wagon, but he averred that this affidavit was untrue, and that it was made by him through fear of appellant, and because appellant and his son had threatened him, and that in fact appellant had killed deceased by striking him with a wagon standard.
The question for the jury was whether Taylor told the truth in his testimony that appellant killed deceased, or in his affidavit that deceased was killed by his fall from the wagon.
Looking to the authorities, cited by appellant, we note that in the Hamilton case, supra, Judge Hawkins quoted as follows: “It is elementary that efforts to manufacture evdence, or procure false testimony, may be shown as indicating a consciousness of guilt,” and many cases are cited supporting the proposition. We do not see how this helps appellant. In the Gomez case, supra, the legal effect of Art. 728, supra, is merely announced, and as far as we can see it affords appellant no assistance. We think appellant mistaken in his attempted application of the holding in Bennett v. State, 81 S. W. Rep., 30, to the case before us. If we understand that case, it sets out that after introducing a written dying declaration of one who was killed, the State also proved an oral dying declaration of the same party. The accused then put on two witnesses who swore that they were with deceased after she was shot and before she died, and heard her say that appellant and one Evans were shooting at each other when she, deceased, was shot, but she did not know who shot her. It further appears that the State then introduced four witnesses, F. D. M. and H., who testified that they were with deceased part of the time after she was shot and before she died, and they did not hear her say that appellant and Evans were shooting at each other, and she got shot and did not know who shot her. In his charge the court told the jury:
“The evidence of the witnesses F, D, M and H to the effect and in substance that the deceased did not say at any time in their presence that she was shot while the defendant and Joe Evans were shooting at each other, and she didn’t know who *376shot her, was admitted for the sole purpose to be considered by you for what you may deem the same worth, if anything, as affecting the credibility of the witness Henrietta Edwards, and you can consider the same for no other purpose.”
This charge was held error, and we think correctly so. The difference in the principle involved in the instant case and the Bennett case seems apparent. The testimony of the four witnesses introduced by the State in the Bennett case was not a direct statement that the two defense witnesses had made false statements to them, but was in substance and in effect for the consideration of the jury as showing that said defense witnesses might have been mistaken in their testimony. We illustrate in an effort to make clear the distinction: Two men may be present at a homicide, and one testify that he heard the accused call the deceased an approbrious epithet, and then saw him shoot deceased. The other witness may testify that he saw the accused shoot deceased, but did not hear him call the deceased the epithet.- It would be clearly wrong for the court to tell the jury they could only consider the testimony of witness No. 2 to the effect that he did not hear the accused use the epithet, as impeaching witness No. 1, — for such testimony might be used by the jury as showing that no epithet was in fact used by the accused. Suppose, however, witness No. 1, after swearing to the fact that the accused used the epithet mentioned, be asked if he had not met witness No. 2 as he went home from the scene of the homicide, and if he had not told witness No. 2 that the accused did not use any epithet before shooting deceased. Manifestly if in such case witness No. 2 be introduced to testify that he saw witness No. 1 on his way home on the occasion mentioned, and the witness told him that the accused did not use any epithet, this could only be used for the purpose of impeaching witness No. 1, and the court, at least upon request, should so instruct the jury. Nor do any of the authorities cited by appellant seem to hold contrary to what we said in our former opinion.
Believing the case properly decided, the motion for rehearing is overruled.
Overruled.