(dissenting).
In order to prove that appellant was connected with the burglary, the state relied, chiefly, upon the following facts:
*648The witness Farris, who was under indictment for the same offense and was an accomplice witness, testified that he, Gene Wynn, Billy Dabbs, and the appellant entered into a conspiracy in Dallas, where they resided, to burglarize the Eaglebarger service station in Paris. In pursuance of that conspiracy, all parties came to Paris in Wynn’s automobile. Dabbs and the appellant were to commit the burglary and “get the money out of the safe,” while the witness and Wynn kept watch. Upon arriving in Paris, Dabbs and the appellant got out of the automobile “on the Plaza.” Witness and Wynn went to a tourist court, and saw nothing more of Dabbs and appellant until they were brought to jail. The witness was not interrogated as to his whereabouts when the burglary was committed, nor did he testify relative to whether he and Wynn carried out and performed their part of the conspiracy.
After appellant had introduced testimony showing that he was in Dallas at the time of the burglary, it appears that, upon both sides announcing that the evidence was closed, court was adjourned until the following morning. When court reconvened, appellant sought permission to reopen the testimony. The court granted such request and, thereupon, appellant called Wynn as a witness in his behalf.
Because he was under indictment for the same offense and could not be called by the appellant to testify, the state’s objection to the testimony of the witness was sustained. Appellant’s counsel then stated to the court:
“The testimony we wanted to elicit we didn’t hear about until this morning and had no information to base any questions on until this morning and if we can’t prove it by this witness, we would like to have the opportunity to prove it by another witness.”
Thereupon, appellant’s counsel asked that the accomplice witness Farris be called, as he could develop from him the same facts that he expected to prove by Wynn. The state objected to the further reopening of the testimony in the case and to the recalling of the witness Farris to testify. This objection was sustained and the appellant was refused permission to recall the witness Farris for further questioning.
Counsel for the appellant was then permitted to perfect his bill of exception and to state what he expected to prove by the witness — which he did, as follows:
*649“The Court having overruled permission of counsel for the defendant to call Herbert Franklin Farris to the stand for the purpose of showing for his bill of exceptions what testimony he seeks to elicit by the witness Farris, states that he the witness, he expects that the witness Farris if permitted to testify, would testify that on the night of March 20, 1955, he came to Paris in company with another individual whose name is not known to this defendant or his counsel, but that he did not come to Paris as he testified yesterday with Gene Wynn, William James Dabbs and Bobby Davidson; that he and this unnamed man broke into Eaglebarger’s filling station on the night of March 20, 1955 at approximately between 12:30 — -between 12:00 and 12:30 A.M. and were disturbed after they had damaged the safe therein and placed a charge of nitroglycerin on the door and that they got scared and left the place; that the other man went his way, which was unknown to Farris, but that Farris had met Wynn while both were serving in the penitentiary at Huntsville, Texas; that sometime after one o’clock and before two-thirty on the Sunday Morning of March 20, 1955 — he went to the Main tourist courts looking for Wynn whom he had known while in the penitentiary, and that he stayed there with Wynn until the officers of the County came out and arrested him and placed him in jail; that later while he was in jail, he told Wynn, after he had been in jail for less than two weeks and after Wynn had been placed in jail, that he and another man had burglarized Eagleberger’s place of business; that he had been convicted so many times, he was an habitual criminal and that he could be sent to the pen for life for this burglary and to save himself from being sent to the pen for life, he had agreed with the officers and the prosecuting attorney to testify as a witness for the State in the trial of Bobby Emmett Davidson and Wynn and Dabbs and that in return for such promise, to testify against them, we would receive only a 2-year sentence instead of a sentence as a habitual criminal and that was the reason (which) prompted him to testify as he previously testified in this case.”
There is no question but that the proffered testimony would have been material to the appellant, for it showed that the appellant was not connected with the burglary and that it was a retraction by a state’s witness of very damaging testimony against appellant, thereby supporting his alibi defense.
There is no escape from the conclusion that the trial court deprived the appellant of this testimony by the witness before the jury, solely because he would not permit the testimony to be reopened.
*650Art. 643, C. C. P., reads as follows:
“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.”
Under that article, appellant’s right to recall the witness and to develop the facts which he expected to prove by him is limited only to whether due administration of justice so required.
Authorities collated under that article in Vernon’s C. C. P. show that the right to reopen the testimony in a case has been uniformly extended to both the state and the defendant, without constituting reversible error or an abuse of discretion by the trial courts in so doing. The basis of these holdings is that due administration of justice contemplates that all available testimony which is material to a decision of the case should be introduced upon the trial thereof.
The leniency which the courts have extended to the right to reopen the testimony in a case is in marked contrast to that applied to the refusal of that right and privilege. In such instances, the trial court’s discretion is very definitely restricted. The rule controlling- is stated in Stone v. State, 91 Tex. Cr. R. 313, 239 S. W. 209, as follows:
“Concerning the testimony offered before the argument begins, the discretion of the court is not so broad. DeLerosa v. State, 74 Tex. Cr. R. 604, 170 S. W. 313. In fadt, under the latter circumstances, if the proffered evidence is material and bears directly upon the main issues in the case, it would not be within the discretion of the court to exclude it unless it was offered under conditions which would impede the progress, of the trial or in some way interfere with the due administration of justice.”
See: Sloane v. State, 118 Tex. Cr. R. 649, 37 S. W. 2d 1019; Meeks v. State, 135 Tex. Cr. R. 170, 117 S. W. 2d 454; Stanley v. State, 138 Tex. Cr. R. 486, 137 S. W. 2d 34.
The instant case comes within the rule stated. The testimony which the trial court refused to permit was highly material to the appellant and was a withdrawal of some of the most damaging evidence against him (appellant) by the witness who. had given that testimony. The proffered testimony was not merely *651impeaching in nature but was a complete retraction of evidence by the witness who gave it.
In connection with the refusal of the request to reopen the testimony, the trial court gave no explanation for his action nor did he say that it would unduly delay the trial of the case.
In its brief before this court, the state, though not seeking to justify the trial court’s ruling, insists that the bill of exception was destroyed and the matter complained of therein waived on the hearing of the motion for new trial.
It is pointed out, and the recitations contained in the order overruling appellant’s motion for a new trial so show, that the trial court at that time “tendered to the defendant in open court the witness Herbie Franklin Farris for the purpose of perfecting his bill of exceptions, which tender was refused by the defendant . . . . ”
So far as the appellant was concerned, his bill of exception was entirely completed and perfected at the time he asked that the testimony be reopened, for he made the request, offered the witness, and stated what the witness would testify, if permitted.
If the state was in position to show, on the motion for new trial, that the witness would not have testified as claimed or was in position to show the existence of any other fact or facts which would justify the action of the trial court in refusing to reopen the case, it should have done so. Not having done so, the presumption must follow that the state was not in such position.
To my mind, this is just another occasion where an accused has been deprived of his substantial rights without justification or excuse. It occurs to me that the least semblance of justice would require that the appellant be entitled to reopen the case and put in evidence facts material to his defense — which facts would have destroyed the state’s case.
Appellant was entitled to have that testimony before the jury upon the trial of the case. The jury may have rendered a different verdict had the testimony been before them. What may or may not have been developed on motion for a new trial is therefore of little comfort.
If appellant could not have proved what he said he could prove, the state ought to have so shown, for it was under that *652burden if the error in refusing to reopen the testimony was to be obviated. The state made no effort to comply with that burden. No excuse can be applied to that failure other than that it could not.
For the error in refusing appellant permission to reopen the case after the testimony had closed and before the argument began, the judgment should be reversed and the cause remanded.
I respectfully dissent to the affirmance of this case.