ON MOTION FOR REHEARING
MORRISON, Judge.In our original opinion we did not discuss Appellant’s Bill of Exception No. 25.
The witness Baber testified for the appellant that he had sold the calves to Harris and that appellant had been present when the calves were unloaded. This was the extent of his direct examination. On cross-examination the state elicited from the witness the fact that he had had a prior arrangement with Harris to steal the calves from the Slaughter ranch where he worked and bring them to him. He was then asked if he had not, in answer to appellant’s question, told him where he had gotten the calves. He replied that he had not. He was then asked if he *513had not told Humphreys, Hollar and the special prosecutor that he had informed the appellant that the calves had come from the Slaughter ranch. This he denied. He was then asked if he had not told the same parties that the appellant had offered to bribe him to let him (the appellant) drive through the Slaughter ranch. This he denied. It should be noted here that the only possible implication from these last questions was that the appellant knew the calves were stolen and wanted to steal some more cattle himself. Surely the state had the right to prove this fact if they could from the witness Baber or from any other source consistent with the rules of evidence. But let us proceed to determine how they did prove it in this case.
The witness Humphreys was called in rebuttal and, over the appellant’s objection, permitted to testify that he and Hollar and the special prosecutor had talked to the witness Baber before the instant trial and that Baber had told them that he had informed the appellant that the calves had come from the Slaughter ranch and that appellant had offered him $50.00 to let him (the appellant) drive through the Slaughter ranch.
This manner of proof would appear to be in violation of the rule so concisely stated by Judge Lattimore in Austin v. State, 95 Texas Cr. Rep. 417, 254 S.W. 795, as follows, “ ... if the State seeks to draw out new matter from a defense witness on cross-examination, and fails to elicit the desired answer, it is error to allow the State to impeach such witness by proof of the desired facts by other witnesses, and thus get hearsay evidence before the jury.”
In Wells v. State, 43 Texas Cr. Rep. 451, 67 S.W. 1020, the witness Pafford testified that he had seen one Cummins in the absence of the accused and that Cummins had reported to him that the appellant had told him (Cummins) that he was going to commit the offense. Both the appellant and his witness Cummins denied that the statement had been made. In reversing the conviction, this court said, “If Cummins was placed on the stand to prove the statement as having been made by the appellant, and denied it, Cummins could not then be impeached by showing that he (Cummins) had told Pafford that defendant had made the statement.”
In Casey v. State, 49 Texas Cr. Rep. 174, 90 S.W. 1018, the appellant offered the witness Laura Casey, who was cross-examined about certain statements she was alleged to have made to others about matters not brought out on direct examination. *514Laura denied having made such statements. This court held that this was failure of proof and that it was error to permit other witnesses to testify that Laura had made the statements to them.
In Mitchell v. State, 84 Texas Cr. Rep. 36, 204 S.W. 767, this court, in considering this type of evidence, said, “It was not Mrs. Mitchell testifying, or any other witness testifying, to what defendant said, but it was Mrs. Kemper testifying to what Mrs. Mitchell said the defendant said, which was denied by Mrs. Mitchell.”
We quote from Lewis v. State, 108 Texas Cr. Rep. 258, 1 S.W. 2d 298:
“The bill shows that Ted Jones, a witness for appellant, had testified to material facts bearing on the issue of self-defense; that upon cross-examination of said witness by the state he was asked if he had not told Officer Timmons that appellant told him (Jones) that he (appellant) was going to kill him a negro by Christmas; that the witness Jones denied making such statement to Timmons; and that Timmons was then placed upon the stand by the state and testified that Jones made the statement to him. As shown by the bill, appellant was not present at the time Timmons had the conversation with Jones. Moreover, the bill shows that the matter had not been gone into by appellant. In our original opinion we discussed the matter complained of in this bill in the light of appellant’s objection that the testimony was improper, in that it was an effort on the part of the state to impeach the witness on an immaterial and collateral matter. We note now that the bill shows that appellant also objected to the testimony on the ground that it was hearsay. This objection was well taken. The testimony was hearsay, and was inadmissible even for the, purpose of impeaching the witness. See Mitchell v. State, 84 Texas Cr. R. 36, 204 S.W. 767. It is obvious that the facts elicited from the witness Timmons, under the guise of impeaching the witness Jones, were calculated to prejudice appellant.”
It cannot be said that this evidence was admissible, even though hearsay, in order to impeach Baber because the issue in the instant trial was not whether Baber or the officers were telling the truth but rather whether the appellant had acquired the calf involved in this prosecution feloniously.
*515The danger of permitting such evidence is apparent and calls for a reversal of this conviction. Accordingly, the motion for rehearing is granted; the judgment of affirmance is set aside; and the judgment is now reversed and the cause remanded.