In view of the evidence upon which the case was tried, it appears to us that the motion for a new trial should have been granted to enable the defendant upon another trial to produce the absent witnesses whose testimony, as set out in the previously overruled application for continuance, is manifestly important and material, and is not lacking in its probability of truth. This application was in strict compliance with the terms of the law, and all the diligence required was exercised by defendant to secure the attendance of his witnesses.
In signing the bill of exceptions taken to the overruling of this application, the judge in an explanatory note says that the proposed evidence of Mrs. Waters and Mrs. Burns was simply cumulative of evidence given by each of their husbands, respectively, who testified in the case. The fact that it was so could only have been known to the court after the application was overruled, and was no reason explaining or justifying the action. Whether the application was sufficient in law was the question for the court to pass upon when the motion was presented. In first applications the law never has required, and does not now require the defendant to state “that the testimony cannot be procured from any other source known to defendant.” This statement is only required in applications subsequent to the first. (Code Crim. Proc., Arts. 560, 561.)
That evidence is cumulative where the object sought is to prove an alibi is no reason for its exclusion; on the contrary, the greater the number of witnesses to the facts establishing it, the stronger ordinarily would be our reliance upon and conviction of its truth. As to the absent witness Nicholas, his proposed testimony was of vital importance to the defendant. One, if not tile most damaging, of the inculpatory facts proven against defendant was the finding of tracks around the house corresponding with tracks made, and the size of the shoes worn by defendant. Two witnesses swear that they followed and traced these tracks some miles on the road leading to the house where defendant resided, and that, whilst so tracing these tracks, they found and picked up the bottle label marked strychnia, and containing directions for its use. Now, it was proposed to prove by the absent witness Nicholas that he was .at his home bordering upon this road; that he saw the two witnesses who were tracking, as they passed by the house, and that the tracks they were following *478were not those of defendant; that before they passed he had seen another party, whose tracks he believed them to be, pass in the same direction down the road; and that if defendant had passed he would have seen him, but that he did not see defendant pass. We are of opinion defendant should have the benefit of this testimony, if it can be produced by him.
Several bills of exception were taken to the admission of testimony over objection of defendant.
First: All the proceedings, including the petition, judgment, etc., in a suit wherein defendant’s wife had sued and obtained a decree of divorce from him were read by the prosecution in evidence to the jury. As a fact tending to show the feelings and relations of the parties to each other, it was doubtless legitimate to prove that the wife had instituted suit for a divorce prior to, and that the same was pending at, the time it was alleged the crime charged against defendant was committed. But it was error to permit the allegations of her petition for divorce to be read and go as evidence to the jury, and especially so without any explanation or instruction as to how far and for what purpose they were alone to be considered. As to the judgment or decree for divorce, that was clearly inadmissible, because it was rendered several months subsequent to the date of the offense alleged in this case, and could possibly have shed no light upon, or tended to illustrate in the remotest degree, any issuable matter in this case.
Second: Henry Gardner, one of the witnesses, was allowed over objection to testify to a conversation between himself and wife (defendant not being present), that “I (witness) told my wife I did not want Ed. Pinckord to have my gun, because I believed he wanted to borrow my gun and go down and shoot old Sim Turner.” “How it is not only a fundamental, but it is laid down as the first rule governing the production of evidence ‘ that the evidence offered must correspond with the allegations and be confined to the point in issue.’ (1 Greenl. Ev., § 50.) This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; and the reason is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them.” (Id., sec. 51.; Cesure v. The State, 1 Texas Ct. App., 19.) Sim Turner was the father-in-law of Mrs. Pinckord, and after she and her husband separated she sought the protec*479tian of, and was living at a house belonging to, said Turner. Such evidence was wholly irrelevant and calculated to prejudice the rights of defendant. All the evidence above discussed was incompetent and improper, and the objections to it should have been sustained. A defendant in a criminal case is entitled to the verdict of a jury upon competent testimony alone. (Draper v. The State, 22 Texas, 400.)
The judgment of the court below is reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered February 14, 1883.