(dissenting). On a former day of this term, this case was affirmed by a majority opinion. I then dissent'ed, but did not write, trusting that my Brethren would see the error of their way, and upon motion for rehearing reverse the judgment, to the end that defendant might have a legal trial; but they have written an opinion on the rehearing overruling that motion. I do not purpose to go into a detailed statement of the case or the questions involved, but will state a few reasons why this judgment is erroneously affirmed.
While the witness Vaughn was upon the stand, he was asked, first, if he had not been arrested for beating his wife; second, how many times he had been arrested for adultery ; and, third, if he had not been arrested for aggravated assault upon his wife, etc. As these questions were propounded, objection was interposed and sustained. My Brethren hold there was no error in this, and cite authorities to sustain that conclusion. As a general rule, I agree with them that there would be no serious injury, where the questions were not answered. There may be and are exceptions to this general statement. We have reversed judgments because of the unauthorized manner of the prosecutions asking illegitimate questions, in. order to discredit a witness before the jury, even when the questions were not answered. It is readily conceivable how by a continuous course of conduct of this sort a defendant’s case might be seriously injured. We held this character of conduct reversible in the recent case of Sweeney v. State, 145 S. W.-.1 I make these observations in passing as a caution to prosecutions not to indulge in this character of questioning, and the trial courts, if attorneys insist upon following up that line of conduct, to exercise proper discipline in preventing it. There is no occasion for such things, and it only complicates cases unnecessarily, and often requires reversals of judgments, when otherwise it would not be necessary. I desire to again impress upon trial courts and state’s counsel that a case should be so tried that whén the verdict has been reached the record will be so free of taint and sufficient to prevent a reversal upon appeal. In other words, a case should be tried, so that when the verdict has been rendered and judgment entered it will be a legal conclusion of the litigation. More care and circumspection in the trial of eases might result in fewer appeals, and certainly in fewer reversals. Under our statutes and Constitution, a party accused of crime is entitled to a fair trial." He is entitled to a legal trial. Under the rule prescribed by the Legislature, I do not understand why, in the trial courts, these statutory provisions are sought to be evaded on some technicality. I will readily agree with my Brethren that it is not every slight error which calls for a reversal. It is only such error as might probably work injury to the accused. My Brethren, in their opinion, recognize this rule as correct. So it would necessarily follow, if the error probably did injure the accused, he would not be asking too much of this court to reverse the conviction. It is a difficulty, not easily solved, for an appellate court to say that palpable violations of law are harmless error. I call attention to the following cases: Tijerina v. State, 45 Tex. Cr. R. 182, 74 S. W. 913; Sweeney v. State, 145 S. W.-.1 recently decided; Campbell v. State, 138 S. W. 609; Wyatt v. State, 58 Tex. Cr. R. 115, 124 S. W. 929, 137 Am. St. Rep. 926; Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847.
2. There are quite a number of bills of exceptions, presenting questions for revision, some of which clearly show error. Bill No. 6 recites that Vaughn, testifying in behalf of the defendant, stated, in substance, that deceased came to his barber shop on the evening of the homicide, got his pistol, which he had left there that morning, oiled and cleaned it, and said that he intended “to whip Renn or kill him that night.” Vaughn, later the same evening, saw Renn at his barber shop, and informed him what deceased had said. He also testified that he was at his shop, several blocks away, at the time the shooting occurred. Upon cross-examination, Vaughn was asked by the prosecution if he did not see the witness Nick Lightfoot, a short time after the shooting, on the night of the homicide, and have a talk with him and other persons, in which he (Vaughn) said that Renn had killed deceased Collins; and that Renn was in his barber shop that evening, and told him that he was going to kill Collins that night, which *175question was answered by Vaugbn in the negative. Whereupon Eightfoot was introduced'by the state, and, over appellant's objection, stated, in substance, that he saw and.had a conversation with Vaughn on the night of the homicide, after the shooting occurred, on the Rock Island Railroad east of the place where deceased was killed, and that Watson was with him; that in the conversation Vaughn, at that time and place, said to them that Renn had killed Collins; and that Renn was in his barber shop that evening, and told him (Vaughn) that he was going to kill Collins that night. Quite a number of objections are urged to this testimony, that it was not pertinent to any issue in the case, not admissible for any purpose, was immaterial to any issue in the case, was an effort to impeach the witness Vaughn on an immaterial matter, was hearsay, and an effort to impeach Vaughn upon his failure to give testimony favorable to the state. My Brethren hold that this was admissible. I do not think so under any of the authorities. The state certainly had no legal right, upon the examination of this witness, to try to introduce before the jury the hearsay statements of Vaughn, if he had made them, to contradict him, in order to get the threat before the jury. Vaughn on this matter was the state’s witness. It was new matter, and it will be noted that he did not ask Vaughn if Renn had made the statement that he intended to kill Collins, but asked him if he did not have a conversation with the witness on the railroad, at night, in which he told him that Renn had said he intended to kill Collins. Here was where the court made the witness Vaughan testify for the state on new matter and with which it was not sought or intended to connect Renn. It was out of the presence of Renn, and was simply a failure on the part of the state to prove a threat or a statement, after an illegitimate effort to do so. The failure to testify, as indicated by the question, could in no manner have injured the state. It was simply a failure to make proof in an attempt to impeach. It is a well-settled rule that it is error to permit the state to impeach her own witness, where such witness merely fails to remember, or refuses to testify, or fails to make out the state’s case. A mere failure to make proof is no ground for impeaching a witness. Bennett v. State, 24 Tex. App. 77, 5 S. W. 527, 5 Am. St. Rep. 875; Duuagain v. State, 88 Tex. Cr. R. 614, 44 S. W. 148; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Scott v. State, 52 Tex. Cr. R. 165, 105 S. W. 796; Wells v. State, 43 Tex. Cr. R. 451, 67 S. W. 1020; Owens v. State, 46 Tex. Cr. R. 16, 79 S. W. 575; Hanna v. State, 46 Tex. Cr. R. 8, 79 S. W. 544; Ware v. State, 49 Tex. Cr. R. 415, 92 S. W. 1093; Skeen v. State, 51 Tex. Cr. R. 40, 100 S. W. 770; Quinn v. State, 51 Tex. Cr. R. 156, 101 S. W. 248; Shackelford v. State, 27 S. W. 8; Finley v. State, 47 S. W. 1015; Knight v. State, 65 S. W. 89; Gibson v. State, 29 S. W. 471; Kessinger v. State, 71 S. W. 597; Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904; Williford v. State, 36 Tex. Cr. R. 425, 37 S. W. 761; Ozark v. State, 51 Tex. Cr. R. 108, 100 S. W. 927; Johnson v. State, 36 Tex. Cr. R. 396, 37 S. W. 424; Largin v. State, 37 Tex. Cr. R. 574, 40 S. W. 280; Thomas v. State, 14 Tex. App. 72; Dawson v. State, 74 S. W. 912; Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 107.
It is also the rule in Texas if a witness be cross-examined as to new matter he becomes the witness of the party injecting the new matter, and if there is a mere failure to make the proof the party is not entitled to impeach the witness, as to such new matter, by proof of his statements to another witness, and thus get hearsay testimony before the jury. Vaden v. State, 25 S. W. 777.
Again, it has been held in a great number of authorities, if the defendant’s witness is cross-examined as to new matter, he becomes the state’s witness in regard to that matter; and if the state fails to elicit the desired answer, it is the mere failure to make proof, and it is error to permit the state to impeach the witness, as to such new matter, by proving statements by other witnesses, and in this manner get hearsay testimony before the jury. Woodward v. State, 42 Tex. Cr. R. 205, 58 S. W. 135; Owens v. State, 35 Tex. Cr. R. 351, 33 S. W. 875; Paris v. State, 35 Tex. Cr. R. 95, 31 S. W. 855; Casey v. State, 49 Tex. Cr. R. 175, 90 S. W. 1018; Johnson v. State, 22 Tex. App. 206, 2 S. W. 609; Gaines v. State, 53 S. W. 624; Maroney v. State, 95 S. W. 109; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Shackelford v. State, 27 S. W. 8; Drake v. State, 29 Tex. App. 265, 15 S. W. 725; Washington v. State, 17 Tex. App. 203.
The state may only impeach her own witness by .proof of contradictory statements, where he testifies to either affirmative or negative facts which are injurious to the state’s case. The evidence brought out from the witness Vaughn was not injurious to the state in any manner. It was just a failure of proof. The question asked Vaughn was not authorized. Sapp v. State, 77 S. W. 457; White v. State, 62 S. W. 750; Young v. State, 44 S. W. 836; Williford v. State, 36 Tex. Cr. R. 424, 37 S. W. 761; Self v. State, 28 Tex. App. 408, 13 S. W. 602; Storms v. State, 37 S. W. 439; Clanton v. State, 13 Tex. App. 152; Tyler v. State, 13 Tex. App. 208; Ross v. State, 45 S. W. 808; Kirk v. State, 35 Tex. Cr. R. 230, 32 S. W. 1045; Somerville v. State, 6 Tex. App. 433; Davis v. State, 21 S. W. 369; Brown v. State, 55 Tex. Cr. R. 9, 114 S. W. 820; Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271.
It has been held that, where the party is surprised by the answer of a witness, and that answer is hurtful to him or his cause, and when he has been led to believe by the witness that it would be favorable, under *176our statute, under some circumstances, tie has a right to contradict even his own witness. Jeter v. State, 52 Tex. Cr. R. 216, 106 S. W. 371; Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271. But no authority can be found which would justify the party to impeach his own witness when that witness has sworn to no fact injurious to him, but there is simply a failure to make proof. Bailey v. State, 37 Tex. Cr. R. 581, 40 S. W. 281; Scott v. State, 20 S. W. 540; Vaden v. State, 25 S. W. 777.
The decisions have held, and correctly so, that error in permitting the state to impeach her own witness is not cured by limiting in the charge the hearsay testimony to impeachment. Skeen v. State, 51 Tex. Cr. R. 40, 100 S. W. 770; Ozark v. State, 51 Tex. Cr. R. 110, 100 S. W. 927; Williford v. State, 30 Tex. Cr. R. 414, 37 S. W. 761. It is also the rule that error in permitting the state to impeach her own witness is not cured by withdrawing such hearsay testimony. Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761. These cases and authorities, it would seem, ought to be sufficient to settle the rule, if. it be possible for decisions to settle a question. My Brethren cite, in support of the ruling of the trial court, Drake v. State, 29 Tex. App. 265, 15 S. W. 725, and Hickey v. State, 138 S. W. 1051. Those eases are directly in point against the majority opinion. Had Vaughn given testimony against the state upon the line indicated, and it was hurtful, there might have been reason for the impeachment; but under no known rule I have been able to find is the ruling of the trial court justified. It may be inferred, perhaps, from the statement of the opinion on rehearing that my Brethren conceived the idea that the conclusion they reached was justified by the fact, and they so state, that there was some issue between the witness Vaughn and the witness Lightfoot, in regard to what occurred in Vaughn’s barber shop, in regard to the visit of the deceased and appellant during the evening preceding the homicide at night. The opinion travels upon the theory that the two witnesses were disagreeing upon whether it was Renn who visited the shop or Collins, the deceased, and made the threats. I have looked this matter up with some degree of care to see whether this is correct or not, and, as I read the record, their statement is clearly not justified. Vaughn testified that deceased, Collins, left the pistol at his barber shop in the morning, and went away. In the evening, about 5 or 6 o’clock he returned, got his pistol, and called for some oil with which to clean it; that he did clean and oil it, and made a statement to the effect that he was going to whip or kill Renn that night. Lightfoot was not at Vaughn’s barber shop when this occurred, and does not so testify or intimate, and knew nothing about it. He testified that at another time during the same evening, but later, he was at Vaughn’s barber shop, and I that Renn came also, and that while there Renn made threats with reference to the deceased, Collins. Collins was not in the shop at the time, and there is not a fact in the record to indicate that he was. Neither Vaughn nor Lightfoot ever suggested Collins’ presence at that time. In other words, this record demonstrates the fact to be that Collins visited Vaughn’s barber shop, oiled his pistol, made his threats, and went away, and that subsequently Renn came in, and Vaughn informed him as to what Collins had said about him, as to his purpose and intention of whipping him or killing him that night. Lightfoot was not present when Collins was in Vaughn’s barber shop, but later when Renn came, and after1 Collins left, Lightfoot was there, so he states.
3. Another bill of exceptions recites that appellant’s witness Vaughn testified that deceased had, at his (witness’) barber shop, during the evening prior to the homicide at night, cleaned and oiled his pistol, at the time stating he was going to kill or whip Renn (appellant) that night; and that he (Vaughn) notified appellant of these threats and statements of the deceased before the homicide occurred. On cross-examination, Vaughn testified he was in his barber shop at the time of the shooting, and did not hear it, and that the state’s witness Sims was not in his barber shop at that time, nor just after the shooting, and Stewart did not come into his (Vaughn’s) barber shop just after the shooting, and say: “I hear some shooting down there; I reckon some negroes must be killing one another down there” — and that he (Vaughn) did not state in reply to said Stewart, “I guess that is Renn now, killing Collins.” These questions were asked as basis for impeachment of Vaughn, and as a predicate for that purpose. The state then introduced Sims, who testified he was in Vaughn’s barber shop when the shooting occurred, and heard it; that Stewart did come in and utter the remark above imputed to him; and that Vaughn replied, “I guess it is Renn now.” A great number of objections, and practically every available one, were urged by appellant to the introduction of the above statement. My Brethren hold this was not error. As I understand the authorities in Texas, there is no decision that will sustain them, or the ruling of the trial court. An unbroken line of authorities holds the ruling of the trial court in this instance error, and material error. A great many of these cases are collated by Mr. Branch, in his work on Criminal Law of Texas (section 348).
Opinions expressed, in the absence of defendant, to the injured party or others that would point to the guilt of defendant, or connect him with the transaction, are hearsay. Jackson v. State, 20 Tex. App. 193; Langford v. State, 9 Tex. App. 287. It is also error to permit the state to impeach a witness by proof of a statement of a witness, ex*177pressing an apprehension of trouble, whether based on knowledge of defendant or his actions, or for any other reason. Wilson v. State, 37 Tex. Cr. R. 67, 38 S. W. 610; Vanhouser v. State, 62 Tex. Cr. R. 672, 108 S. W. 386; Hobbs v. State, 63 Tex. Cr. R. 82, 112 S. W. 308; Drake v. State, 29 Tex. App. 271, 15 S. W. 725; Woodward v. State, 50 Tex. Cr. R. 299, 97 S. W. 499; Bluman v. State, 33 Tex. Cr. R. 64, 21 S. W. 1027, 26 S. W. 75; Gaines v. State, 38 Tex. Cr. R. 220, 42 S. W. 385; Red v. State, 39 Tex. Cr. R. 423, 46 S. W. 408; Jennings v. State, 60 Tex. Cr. R. 421, 132 S. W. 475; Hickey v. State, 138 S. W. 1051.
It has also been held that it was error to introduce as evidence before the jury the opinion of a witness, as to the cause of the trouble, by impeaching the witness by proof of a statement expressing such opinion. Marsh v. State, 54 Tex. Cr. R. 147, 112 S. W. 320; Williford v. State, 36 Tex. Cr. R. 425, 37 S. W. 761. In quite a line of cases, it has been held error to permit the state to impeach a witness by proving, either by admission of the witness or' evidence laying the predicate, that witness, by words or acts, had expressed an opinion of defendant’s guilt, or has an opinion as to who had committed the offense. Cogdell v. State 43 Tex. Cr. R. 180, 63 S. W. 645; Morton v. State, 43 Tex. Cr. R. 537, 67 S. W. 115; Vann v. State, 45 Tex. Cr. R. 445, 77 S. W. 813; Davis v. State, 20 S. W. 923; Jenkins v. State, 45 Tex. Cr. R. 178, 75 S. W. 312; Watson v. State, 50 Tex. Cr. R. 172, 95 S. W. 115; Red v. State, 39 Tex. Cr. R. 423, 46 S. W. 408; Kirk v. State, 48 Tex. Cr. R. 624, 89 S. W. 1067; Parker v. State, 46 Tex. Cr. R. 468, 80 S. W. 1008, 108 Am. St. Rep. 1021; Scott v. State, 49 Tex. Cr. R. 390, 93 S. W. 112; Jennings v. State, 60 Tex. Cr. R. 421, 132 S. W. 475; Burnam v. State, 133 S. W. 1045.
It has also been held that the reasons of a witness for his actions, where they involve an opinion as to the guilt of defendant, or amount to an expression hurtful to him, are not admissible. Dempsey v. State, 27 Tex. App. 269, 11 S. W. 372, 11 Am. St. Rep. 193; Campbell v. State, 30 Tex. App. 649, 18 S. W. 409; Underwood v. State, 39 Tex. Cr. R. 412, 46 S. W. 245; Bennett v. State, 39 Tex. Cr. R. 649, 48 S. W. 61; Chambers v. State, 46 Tex. Cr. R. 62, 79 S. W. 572; Pinckord v. State, 13 Tex. App. 478; Smith v. State, 33 S. W. 1080. I deem it unnecessary to cite any greater number of authorities to show the error of the trial court in admitting the testimony, and the erroneous conclusion of the majority opinion in sustaining the ruling of the trial court. The rule is also well settled that remarks of bystanders, unheard by the accused, cannot be introduced. For collation of cases, see Branch, Criminal Law, § 343. The above are sufficient to satisfy, it would seem, any candid legal mind of such error.
4. The theory of appellant was self-defense, based on communicated threats and the acts and conduct of the deceased at the time of the shooting. The shooting occurred not far from the foot of the stairway that led up to a Masonic lodgeroom. Appellant and a friend were standing, leaning against the wall, talking. Deceased was coming down the street, until he got opposite appellant, and immediately turned in his direction, and, as appellant shows, made a demonstration, or placed himself in the attitude of causing appellant to believe that deceased was then about to attack him, and execute his previously uttered threats, and that thereupon he began shooting. The state offered evidence showing a conversation between a state’s witness and deceased in regard to the deceased getting a blank application for a petition, perhaps, to send in name of the witness to the lodge for membership, and that he had started in the direction of where the shooting occurred, for the purpose of going upstairs into the lodgeroom for that purpose. This was unknown to appellant. Over the objection of appellant, these matters and statements were permitted to go to the jury. It is unnecessary to state the numerous objections urged. The ruling of the trial court was error, and my Brethren are clearly in error in sustaining such ruling. The authorities in Texas on this question are unbroken, holding such ruling to be error. It is a rule by statute and all the decisions that the case must -be viewed from the defendant’s standpoint, and as it reasonably appeared to him at the time he acted. This is a basic principle, fundamentally true in regard to an accused person, when on trial for his life or liberty, or for a violation of the law. The decision of my Brethren not only ignores the principle, but the effect of their opinion is to absolutely overturn it. The decisions hold, without dissent, that an accused person can only be bound by the facts as they reasonably appear to him. The undisclosed reasons, motives, or purposes of the deceased in being where the accused was, or in going to the scene of the homicide, or proof as to the real destination of the deceased, if it is not shown to have been known to the accused, is never admissible against him, where it affects his defense. Brumley v. State, 21 Tex. App. 238, 17 S. W. 140, 57 Am. Rep. 612; Johnson v. State, 22 Tex. App. 224, 2 S. W. 609; Ball v. State, 29 Tex. App. 125, 14 S. W. 1012; Gilcrease v. State, 33 Tex. Cr. R. 619, 28 S. W. 531; Stell v. State, 58 S. W. 75; Woodward v. State, 42 Tex. Cr. R. 207, 58 S. W. 135; Stanton v. State, 42 Tex. Cr. R. 271, 59 S. W. 271; Adams v. State, 64 S. W. 1056; Wall v. State, 62 S. W. 1063; Wooley v. State, 64 S. W. 1054; Adams v. State, 44 Tex. Cr. R. 66, 68 S. W. 270; Gray v. State, 47 Tex. Cr. R. 377, 83 S. W. 705; Saye v. State, 50 Tex. Cr. R. 572, 99 S. W. 551; Tillman v. State, 51 Tex. Cr. R. 204, 101 S. W. 210; Young v. State, 41 Tex. Cr. R. 444, 55 *178S. W. 331; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138; Gant v. State, 55 Tex. Cr. R. 291, 116 S. W. 801; Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 488; Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. 1126; Phipps v. State, 34 Tex. Cr. R. 564, 31 S. W. 397; Maroney v. State, 95 S. W. 109; Dowell y. State, 58 Tex. Cr. R. 482, 126 S. W. 874. It was held in Wooley y. State, 64 S. W. 1054, that the fact that such testimony is res gestee constitutes no exception to the rule. Winn v. State, 54 Tex. Cr. R. 540, 113 S. W. 918; Simpson v. State, 48 Tex. Cr. R. 331, 87 S. W. 826; Richards v. State, 53 Tex. Cr. R. 412, 110 S. W. 432; Young v. State, 59 Tex. Cr. R. 137, 127 S. W. 1059.
Upon what theory the acts, declarations, and purposes of the deceased were admissible against the defendant, where the bill shows them unknown to the accused, is not explainable'upon any theory of self-defense, or any known principle involved in that doctrine. It is a direct attack upon his self-defensive theory by evidence, of which he was entirely ignorant, and was a fatal thrust, and an illegal one at his self-defense. It is said that the law of self-defense is a natural law, inviolable and unassailable; that it is higher than municipal law, and has often been stated to be a God-given right. Under the decision of my Brethren, these bulwark and guaranteed rights are swept aside, and the undiscovered and unknown purposes of the deceased are made to bind the defendant and cut him off from his theory and right of self-defense, and eliminate it from the case. Without discussing these matters further, I have stated this much and collated some of the authorities sustaining my dissenting views. I do not believe that the right of self-defense should thus be ruthlessly set aside.
I wish to make the above statements in regard to the transactions in order that it will more clearly elucidate the correctness of what I have said. This case has been tried upon false theories, and false application of the rules of law, or rather want of rules of law. There have been applied rules which are totally inapplicable to anything that arose on the trial, and in direct violation of every decision ever rendered by this court.
I therefore respectfully enter my dissent.
Rehearing pending.