On the night of the 10th day of Juty, 1883, appellant shot and killed Tom Mode at a house of prostitution in the city of El Paso. There were present at the time and place of the homicide, besides appellant and deceased, the following named persons, viz.: Mears, Burt, Horn, Biddle, Wheat, Dora Scott and Alice Abbott. Biddle and Wheat were not in the room where the shooting occurred, but were on the porch of the house. Mears, Dora Scott and Alice Abbott, the two latter being, prostitutes and inmates of the house, were inside the room when the difficulty commenced, but immediately fled from the room and did not witness the whole of the transaction. These three witnesses testified on the trial of the case. Burt and Horn were the only other eye-witnesses to the homicide. On the next day after the homicide, Mears, Burt, Horn and Biddle were charged with the murder of the deceased and were arrested. They applied for and obtained a writ of habeas corpus, and upon a hearing had thereon before the district judge were discharged. Appellant was not arrested at that time.
At the next term of the district court for El Paso county, in October, 1883, appellant alone was indicted for the murder of deceased. Burt and Horn, at the time of the homicide, were non*194residents of this State, and have since then continued to reside out of the State. After appellant was indicted and arrested he obtained the depositions of Burt and Horn in his behalf, under and in accordance with the provisions of the statute in such cases provided, and these depositions were returned to and filed in the cause then pending in the district court of El Paso county. Thereafter appellant obtained a change of venue from El Paso county to Presidio county, upon the ground that there existed against him so great a prejudice in El Paso county that he could not obtain a fair and impartial trial in said county. Thereupon his counsel and the district attorney made ánd filed among the papers in the cause a written agreement to the effect that the depositions of Burt and Horn, then on file in the cause, might be read in evidence on the trial of said cause in Presidio county, waiving all objections to the manner and form of taking the same, and subject to such legal objections and exceptions as might be made to the interrogatories and answers were said witnesses personally before the court, giving evidence. This agreement was made and filed on the 22d day of April, 1884.
On the 25th day of April, 1884, the grand jury of El Paso county presented separate indictments against Burt and Horn, charging them with the murder of the deceased Thomas Mode. On April 14, 1885, .the trial of this cause commenced in Presidio county. At that time Burt and Horn had not been arrested on the indictments preferred against them, and no effort had been made on the part of the State to effect their arrest. On the trial appellant offered to read in evidence the depositions of Burt and Horn. The depositions were objected to by the district attorney.upon the ground that said witnesses had been indicted for the same murder, and in support of this objection certified copies of the indictments were exhibited to the court. The court sustained the objection and rejected the depositions. Appellant excepted, and in a bill of exceptions presents the facts we have recited, and also the depositions in full of the said witnesses Burt and Horn. Appellant was convicted of murder in the second degree, and his punishment was assessed at five years’ confinement in' the penitentiary.
We are not aware that the precise question presented by the bill of exceptions has ever been adjudicated. We are very sure that it has. never been passed upon by the courts of this State. We have diligently searched the authorities accessible to us, and have been unable to find a single case in point. It may be said, therefore, to be a question of “first impression,” and we must determine it more by reason .and analogy than by precedent. This we will do in accord*195anee with our best judgment as to what the rule should be in such a case.
Our statute provides that “ Persons charged as principals, accomplices, or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.” (Code Crim. Proc., art. 731.) This provision has been often construed by the courts of this State, but has never been considered with reference to a case similar to the one now before us.
In the case before us, at the time the depositions were taken, the witnesses were competent; they were not then charged as principals, accomplices or accessories, and were not included within the terms or intent of this law. They had not then been indicted, but on the contrary they had been legally discharged upon a hearing on habeas corpus before the district judge, wherein they were accused of the murder of the deceased Mode. These facts were known to the prosecution. The contents of their depositions were also known to the prosecution. With a full knowledge of these facts the district attorney, the representative of the State, agreed in writing that the depositions might be read in evidence on the trial. Three days after this agreement was made and tiled in the cause, the State, by another representative, the grand jury, presented the indictments against these witnesses, and insists that said indictments render their depositions incompetent evidence. Mow the question is, the witnesses being competent when they testified by deposition, can their testimony be rendered incompetent by the subsequent act of the State, without the consent or fault of the defendant?
Principals, accomplices and accessories in crime are incompetent witnesses for each other, upon the ground that they are directly interested in the result of the prosecution. This being the sole ground of their exclusion, wo can derive aid in the solution of the question before us by having recourse to the rules of the law governing the subject in civil matters in other cases of witnesses disqualified, or claimed to be disqualified, by reason of interest.
In chancery proceedings the rule is well established that in cases of disqualifying interest, where the witness previously to becoming disqualified has given a deposition in the cause, the deposition may be read, as if he were since deceased, or insane, or otherwise incapacitated. (Gresley on Ev., 366, 367.) And Mr. Greenleaf lays it down that such deposition may also be read in a trial at law of *196an issue out of chancery; and he further says: “In other trials at law, no express authority has been found for reading the deposition, and it has been said that the course of practice is otherwise; but no reason is given, and the analogies of the law are altogether in favor of admitting the evidence.” (1 Greenl. Ev., § 168.) Again this author says: “It has been laid down in general terms that where one person becomes entitled to the testimony of another, the latter shall not be rendered incompetent to testify by reason of any interest subsequently acquired in the event of the suit. But, though the doctrine is not now universally admitted to that extent, yet it .is well settled and agreed that in all cases where the interest has been subsequently created by the fraudulent act of the adverse party, for the purpose of taking off his testimony, or by any act of mere wantonness, and aside from the ordinary course of business on the part of the witness, he is not thereby rendered incompetent.” (§ 418. See, also, 1 Stark. Ev. (9th ed.), p. 22, and note 1.)
In our own State some of the decisions seem to lay down the rule that if the witness is competent at the time his deposition is taken, such deposition may be read in evidence on the trial of the cause, though the witness be incompetent to testify at the time of the trial. (Lobdell v. Fowler, 33 Texas, 346; Burleson v. Burleson, 28 Texas, 383; Ables v. Miller, 12 Texas, 109.) In Webster v. Mann, 56 Texas, 118, however, it is said that “ the facts and law existing at the time of the trial, and not at the time of taking a deposition, must be looked to ordinarily to determine its competency,” citing Week’s Law of Depositions, 515; and in that case the deposition of a witness taken after he was indicted, but before he was convicted of the crime of forgery, was excluded, the court remarking,-— “The judgment of conviction is but the evidence of the moral depravity which creates the disqualification, and the reason for the exclusion of the testimony of a party while under indictment upon which a conviction is subsequently had is just as strong as though his testimony is given after conviction.” It must be noted that in that case the disqualification of the witness arose from infamy and not interest,, and the infamy existed as well at the time his depositions were taken as at the time of the trial. In the case we are considering the disqualification did not exist at the time the depositions were taken, but arose subsequently. The cases are, therefore, essentially dissimilar. The case we are considering is not an ordinary one, but is sui generis, and does not come within the general rule stated above, that the facts and law existing at the time of the trial must control the admissibility of the deposition.
*197Our judgment and our sense of right, fairness and justice force us to the conclusion that the depositions of Burt and Horn are admissible. 1. Because they were taken at a time when the witnesses were competent to testify. 2. Because the disqualification now urged against their admissibility is by reason of the act of the prosecution. 3. Because the circumstances of the case show, prima facie, we think, that Burt and Horn were not indicted in good faith, but were indicted solely for the purpose of depriving the defendant of their testimony. There is not, in the record before us, a particle of evidence which 'in the slightest degree connects these witnesses with the homicide. They were discharged upon an examination had immediately after the homicide. They were not indicted by the grand jury until nearly one year after the homicide, nor until after appellant had obtained their depositions, and had obtained a change of venue; and after they were indicted no effort whatever on the part of the State was made to obtain their arrest, and yet the prosecution must have known where they resided, because their depositions on file in the cause showed where they resided. 4. Because, before the witnesses were indicted, the State by her representative agreed in writing that these depositions might be read on the trial; thereby conceding the competency of the witnesses at that time.
We think it would be bad faith on the part of the State, and a fraud upon appellant’s rights, to deprive him of the depositions of these witnesses under the peculiar circumstances of this case. Their testimony is most material and vital to his defense, and it should not rest within the power, or within the desire of the prosecution to take it away from him, under the circumstances and in the manner here attempted. We can never give our sanction to such a procedure. These witnesses, if disqualified, are disqualified by the act and procurement of the plaintiff in the cause, the State of Texas, and we must say that the record before us irresistibly forces upon us the conclusion that this disqualification is attempted for the sole purpose of depriving the appellant of this testimony. In the language of Mr. Green leaf, it appears to us that the disqualification of these witnesses “ has been subsequently created by the fraudulent act of the adverse party, for the purpose of taking off their testimony.” (1 Greenl. Ev., § 418.) In such case the disqualification does not exclude the evidence. (Burgess v. Lane, 3 Greenleaf, 165; Manchester Iron Co. v. Sweeting, 10 Wendell, 162.) We hold that the court erred in rejecting the depositions of the witnesses Horn and Burt.
It is unnecessary, we think, that we should discuss other ques*198tians presented by counsel for appellant. Under repeated decisions of this court, the exceptions to the indictment were properly overruled. Upon another trial of the cause, with the testimony of Burt and Horn before the court, the learned judge will no doubt give a charge applicable to the facts of the case. In our opinion, the testimony of these witnesses would make it incumbent upon the court to instruct the jury upon the law of manslaughter and self-defense, as well as murder in the second degree.
Because the court erred in rejecting the depositions of Horn and Burt, the judgment is reversed and the cause is remanded.
jReversed and remanded.
[Opinion delivered May 9, 1885.]