Grosse, the appellant, was convicted of theft of the money of one Andreas Wucherer. He moved for a new trial, which being overruled, the cause is appealed to this court.
The first bill of exceptions raises the question, Was defendant under arrest when certain remarks were made by him, which were adduced by the State on the trial over defendant’s objections? August Hampe, by whom the State proved these remarks, states: “I am now and have been continuously for more than three years city marshal of the city of Hew Braunfels. . . I was at my brother’s store and some one came and told me that the defendant was over at Halm’s bar-room, drunk and creating a disturbance. I went over to the bar-room and found defendant lying on the floor, kicking and striking at every one who came near him. It is an offense *374against the city ordinance to be drunk and disorderly in a public bar-room. I at once called on several others to assist me. We then took defendant and carried him to Halm’s corn crib, and put him in the crib, and barred the door so that he could not get out. I took charge of defendant in my capacity as city marshal. I went over to the bar-room because it was my duty as an officer to attend to such things. I did not consider defendant under arrest when I took him from Halm’s bar-room to the com crib.”
Whether this marshal considered defendant under arrest or not, he nevertheless, was most evidently so. The opinion of this witness, if admissible, certainly cannot control that fact. If to summon a posse, and take a person and carry him to and place him in a crib or elsewhere, and bar the doors so that he cannot escape, does not constitute an arrest, we are at a loss to know what physical acts would. The defendant was committing an offense, and while thus engaged was taken by the officer whose duty it was to arrest him; and he (the officer) states that he took charge of defendant in his capacity as city marshal. But, be that as it may, the defendant was in violation of the law, a posse was called for by the city marshal, responded, and defendant was taken and confined. The question is not so much the intentions and opinions of the marshal in regard to the matter, but the actual situation of defendant, and he was evidently not only in actual but intentional arrest, and, if in arrest, in the custody of the marshal; and therefore his confessions, statements or declarations were not admissible.
2d Bill: The defendant offered the deposition of a witness taken before the examining court, and properly certified to, by which he proposed to prove contradictory statements by a certain witness. Counsel for the State objected because the proper predicate had not been laid. The predicate was as follows; “Defendant asked the *375witness if he had not stated, on his examination in the committing court in this case, that it was daylight when defendant awoke witness, the morning the stolen money was missing; ” which was answered in the negative. The court sustained the objection, upon the grounds that “ witness was not shown his signature nor the written examination, nor asked if it had been read to him in the magistrate’s court, nor was his attention called to time or place other than as set out herein.”
We are of the opinion that it was necessary to show to witness his signature and that part of the deposition in regard to which it was sought to impeach the witness. Mr. Greenleaf states this to be the rule. “A similar principle prevails in cross-examining a witness as to the contents of a letter or other paper written by him. The counsel will not be permitted to represent, in the statement of a question, the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, without having first shown to the witness the letter, and having asked him whether he wrote that letter.” 1 Greenl. Ev. §46. Assuming that defendant desired to introduce the deposition, the above course should have been pursued. The rule specifies letters and other papers written by the witness. We think that by analogy depositions would be included.
It was not necessary that the witness should have been asked if it had been read over to him. We are of the-opinion that his attention was sufficiently called to time and place. The object of the rule requiring the predicate is that the witness sought to be impeached should be informed of the transaction or conversation. This is usually done by citing the time and place, and naming those present; but it certainly cannot be doubted that the witness was informed of this matter by the predicate laid in this case. This charge had been inquired into by an examining court. The witness knew whether he had *376been a witness or not; if he had, certainly the time, place and presence could not have furnished additional information. If the deposition was not in fact read over to the witness, this could have been shown; not, however, to prevent its introduction, but to be considered in connection with any explanation made by the witness.
• Of course the impeaching party must show that the witness signed the deposition or made his mark thereto. This is necessary when it is attempted to use the deposition. If, however, the deposition has not been signed, or if it has not been properly authenticated, still the witness can be impeached by proving what was sworn by him, and if material and in conflict with his evidence on the final trial, this course would be permissible though the deposition be inadmissible.
The third and fourth bills raise the same question, which is: Has a party the right, the other party having closed its evidence, to recall an opposing witness for the purpose of laying the predicate to impeach the witness? The court below held in the negative, and gave these reasons: “The defendant had ample opportunity to lay the predicate on cross-examination when the witness was introduced by the State, but when the State closed, and defendant sought to do this, after stating that his object in putting him on the stand was to try to impeach him, I would not permit it.” Unless there were some indication of a disposition on the part of counsel for defendant to trifle with the court, or unnecessarily to consume the time of the court, this should have been allowed. Hot-withstanding this matter may be in the sound discretion of the court below, the discretion may be abused. With what perfect ease could these indications be shown in the record. This, however, by the way; for we are not left in the dark as to the reason actuating the court in refusing to permit defendant to recall the witnesses.
We cannot concur in the action of the court below *377based upon the reasons given. How frequently is it the case that counsel is not aware of the contradiction until after the opposite party has closed. It is no answer to reply that defendant knew. How many litigants know of the necessity of a predicate at all? Again, the most painstaking, cautious and learned counsel often forget to lay the predicate, or the proper predicate. We know that after both sides have actually closed the evidence, they may hesitate arid consult before announcing the fact. We will not pursue this subject further than to cite the case of Treadway v. State, 1 Texas Ct. App. 668. In the Treadway case the reason assigned by the judge was because, if defendant recalled the witness, he would make him his owri witness, and that he would not be allowed to impeach his own witness. In the case before us the reason given is that the State had closed, and that defendant had the opportunity of laying the predicate in his cross-examination. This, we think, is directly in conflict with the Code upon this subject. If the due administration of justice requires it, either party has the right to introduce evidence at any time before the argument is concluded; and if they have the right to introduce evidence, certainly they have the right to lay the predicate for its introduction.
We will consider one other matter complained of by the appellant. The eighth bill informs us that the district attorney in the close stated to the jury, over objections of defendant, that “he heard, while out on the street in New Braunfels, a citizen remark that it was a great shame that the defendant should have taken the money of the old man Wucherer, near seventy-one years old, and all the money he had in the world.” The court overruled the defendant’s objections and. allowed the district attorney to repeat these remarks, and gives this explanation: “ The district attorney used the remarks byway of argument, and the facts were testified to besides,—that is, *378that Wucherer was seventy-one years old, and it was all the money he had.” We cannot conceive how these remarks could be termed (as applicable to a legal trial) argument. An argument, it is true, is “areason offered in proof, to induce belief, or convince the mind.” A person on the street believed that defendant stole an old man’s money, and thinks it a shame; therefore the minds of the jurors should be convinced that defendant is guilty.
If this is legitimate the crowd, which in some cases is a mob, should be consulted, and its decision reported to the jury, and the verdict should be rendered by this outside tribunal, if approaching unanimity, and be substituted for that of the jury. Who would be willing thus to be tried, or who would be willing for a jury to pass upon his guilt, their minds being first filled with the opinions of the streets, frequently manufactured by ignorance or prejudice, if not malice ? This would not be a trial but a seriously solemn mockery of the same. A citizen is vouchsafed a fair and impartial trial by a jury of twelve men. Rules are given by which the jurors are tested, under oath, touching their relationship, prejudices, and opinions. When an impartial jury is impaneled, the guilt of the accused is tried under the law and evidence. The evidence consists of facts sworn to by witnesses. The witnesses must confront the accused. Hearsay evidence (facts) is not admissible; neither, a fortiori, are street opinions. The fact that there was evidence that the prosecutor was aged, and that hé lost all of his money, had no connection with, nor could it justify, the allusion to outside opinions. The court should have promptly stopped the district attorney, and informed the jury that they should disregard these opinions, and try the defendant by the facts sworn to by the witnesses.
The refused charges, we think, are obnoxious to the objection of being upon the weight of evidence. They present a case much more restricted than that indicated *379by the evidence. All the facts constitute the case, and not a part.
For the errors above noted, the judgment is reversed and the cause remanded.
Reversed and remanded.