On Motion for Rehearing.
DATTIMORE, J.Appellant complains of our disposition of the error urged in his bills of exception Nos. 2 and 6. The matter is discussed at length in the original opinion, to which reference is made for a setting out of the facts. As we understand the law, a witness who does not remember, or is not sure, he made a given statement may be impeached by the opposite party by proof that he did make same. If a witness affirms that he made a statement at one of two times or places, but is not sure which, and the opposite party proves that he did not make such statement at one of the times or places mentioned, the party introducing such witness may then prove that he made same at the other time or place named. The proposition stated carries with it the conclusion that, the witness Baker having testified that he told the sheriff of Jackson county certain things material to this case, either over the phone or at his office, and the defense having shown by the sheriff that Baker did not so *713state over the phone, the state might then prove by the sheriff that Baker did make such statement to him at his office. In addition to the rule referred to in the original opinion, attention is called to the authorities cited under section 92 of Branch’s Annotated P. C. We are unable to perceive the application of Pool v. State, 48 Tex. Cr. R. 480, 88 S. W. 350.
We know of no rule of law under which a witness who had testified at some former time, and whose testimony had been reduced to writing, could be compelled by appellant, during his examination, to take such written statement and search through same to see if he could 'find therein a certain matter. The witness could say that he did or did not make any statement inquired about, and proof to the contrary, if "evidenced by the writing, could be made by the introduction of same.
We doubt the advisability of a court ever stopping a trial to investigate the question as to whether a juror on the panel be so prejudiced as to render him not a fair juror. Certainly such investigation would greatly disturb the orderly procedure which should characterize trials. The accused could be given every opportunity to present such contention in his motion for new trial, and his rights would be secured as fully by. the granting of a new trial upon such showing as he would obtain by the declaration of a mistrial before verdict.
Rinding ourselves unable to agree with the contentions made by appellant in his motion for rehearing, same will be overruled.